For years, it has been a staple of panels at conservative organizations such as the Federalist Society to rail against judges for legislating from the bench. A pending case in the Supreme Court, West Virginia v. EPA, will test whether the new 6-3 conservative majority on the Supreme Court will walk the walk or just talk the talk.
Judicial restraint is about judges resisting the temptation to exercise power to impose what they think is good policy rather than being true to their proper role as judges. This is particularly hard because judges were once permitted to make up the common law as they went along, but in our federal constitutional system, they are supposed to construe the words of statutes or the Constitution, not impose their own views of good policy, on the other branches of government.
Several legal doctrines have developed over the years to counteract the temptation for judges to exercise power in situations in which it is not their proper judicial role to do so. These doctrines have a variety of names such as standing, mootness, and the prohibition on federal courts giving advisory opinions, but at base, all of them, despite their technical differences, converge on the core purpose of confining courts to their proper role in our system, or what is called justiciability. In constitutional terms, that means that courts are only supposed to rule on legal issues that are properly presented in a “case or controversy”:
[T]he Framers did not intend for federal judges to roam at large in construing the Constitution and laws of the United States, but rather preferred and provided for resolution of disputes arising in a judicial manner.… [T]he Convention four times voted down proposals for judges, along with executive branch officials, to sit on a council of revision with the power to veto laws passed by Congress.
“Judges exercised extraordinary power [during the civil rights era] and they found they liked it,” wrote Charles Black, a sage observer of contemporary judicial behavior who taught first at Columbia and then at Yale. Along these same lines, Milton in Paradise Lost imagines Satan seducing Eve into eating the apple by telling her about all the good things she can do with her new powers. He understood that sometimes the belief that one is using power to do good things for humanity is a powerful drug.
The greatest legal scholar of his generation, Alexander M. Bickel, whom George Will called “the keenest public philosopher of our time,” called the willingness of judges to resist this temptation and restrain their desire to exercise power for what they saw as good purposes, “the passive virtues.” Bickel argued that the Supreme Court was only “the least dangerous branch” if judges could resist the impulse to do good as they saw it in order to remain true to their proper constitutional role. One of my classmates at Yale Law School summed it up this way: “The rule of law means that the widows and orphans can’t always win.” This basic legal principle defines how law is different from politics and how judges are supposed to be different from legislators.
These fundamental principles limiting the proper role of judges are about to be sorely tested in a case that will be argued before the Supreme Court on Feb. 28, West Virginia v. EPA. Superficially, the case is about whether the Obama-era EPA went beyond the powers that Congress had given in the Clean Air Act in its 2015 “Clean Power Plan,” which would have required states to shift electrical generation away from coal-fired power plants to less-polluting sources such as wind, solar, and natural gas. There are good arguments pro and con about how to interpret the statutory language in question, which you can hear in this YouTube video of a recent panel discussion at Georgetown’s Supreme Court Institute about the case in which I was privileged to participate.
But the deeper and more important issue in the case is whether the Supreme Court should be hearing the case at all. The reason is that the Biden EPA has formally announced that it will not enforce the Clean Power Plan even if the courts would allow it to do so but instead is developing its own EPA rules about climate change. That means that ruling on the merits in the West Virginia case would now be a classic “advisory opinion,” which means a court ruling on an issue of law in the abstract even though none of the parties before it would actually be affected by the outcome. That is supposed to be a fundamental no-no for the federal courts, although some federal agencies and state courts are allowed to do it.
West Virginia v. EPA has a long history in the courts. When the case originally came before the Supreme Court in 2016, a 5-4 majority issued a stay, an order preventing the rule from going into effect while the review was pending in the lower courts. The standard for that kind of ruling is a judgment by the Court majority that the groups arguing against the rule had a “probability of success on the merits” of their challenge. Nonetheless, on the day before Biden’s inauguration, a majority of the lower court, the D.C. Circuit, upheld the Clean Power Plan and ruled it was illegal for the Trump administration to cancel it. This amounted to the partisan majority of judges appointed by Democrats on the lower court thumbing their collective noses at the conservative majority on the Supreme Court. The lower court was particularly arrogant in that it did not even bother to cite the Supreme Court’s prior action granting a stay.
The conservative justices on the Supreme Court are chomping at the bit to rule on the merits and put the D.C. Circuit in its place, opined Lisa Heinzerling in our recent panel discussion. She is a justly famous Georgetown law professor who wrote the winning brief in the original climate change case in the Supreme Court and later served in the Obama White House and at EPA. She is a “progressive,” and I am not, so I often disagree with Professor Heinzerling, but in this case, she is dead right.
Meanwhile, the environmental advocacy groups and the solicitor general of the United States representing EPA are anticipating a really bad Supreme Court precedent from their perspective if the court reaches the merits. Reversing the D.C. Circuit would probably be based on the “Major Questions Doctrine,” which asserts that administrative agencies are not allowed to make big decisions that have significant effects on the economy even if they are within the literal wording of the statute. This rapidly expanding line of cases has the potential to “deconstruct the administrative state,” as once promised by Steve Bannon. That may seem like a good thing to some, but I have recently contended in these pages that the major questions doctrine is “almost as bad as the disease” of overly broad delegations by Congress that it is intended to correct because it invites judges to project their policy preferences onto the Congress in the guise of its unspoken “intent.”
“Nothing so focuses the mind as the prospect of being hanged,” wrote Mark Twain. The environmentalists and the solicitor general have suddenly discovered the religion of judicial restraint when they are confronted by a conservative Supreme Court that is likely to rule against them. They are urging the court to duck by ruling that the Court should decline to reach the merits because no one is actually going to be affected by the Clean Power Plan. The solicitor general is even offering the Supreme Court the out of “vacating,” i.e. invalidating, the D.C. Circuit opinion so it will no longer be a precedent.
This is about as dramatic as it gets for legal nerds like me!
Despite their recent jailhouse conversion, the environmentalists are absolutely right. The Court should decline to rule on the merits, invalidate the D.C. Circuit decision because it cannot be reviewed on appeal, and dismiss the case on the grounds that certiorari was improvidently granted.
We will see whether the 6-3 conservative majority of the Supreme Court — which is actually divided 3-3-3 with the moderate justices Roberts, Kavanaugh, and Barrett holding the balance of power — will be true to its oft-stated conservative principles about judicial restraint in deed as well as in words.
Philosophers throughout history have observed that it is easy to criticize when the other side abuses power, but not so easy to see when you agree with the result. Jesus said, for example, that we find it easier to spot the speck in our brother’s eye than the large beam in our own. However, the ideal of the rule of law, not of men and women, turns on applying neutral rules equally whether or not we agree with the outcome as a matter of policy.
A wonderful little book, Constitutionalism: Ancient and Modern (1947) by Pulitzer Prize-winning historian Charles Howard McIlwain, points out that constitutional law gets its start when the king feels bound by the advice of his barons even though he disagrees with them. It is no big deal to follow their advice when he agrees with them; the real challenge is to follow the law when you don’t like where it leads. That wonderful book has unfortunately been forgotten by almost everyone except a few law nerds like me. Let’s hope that the justices get the principle, even if they have never heard of the book.