If Merrick Garland serves on the Supreme Court it could be good for the environment

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Mother Jones reports: Merrick Garland has spent the last decade in the weeds of some of the most contentious clean air cases in history — and he’s consistently come out on the side of the environment and against big polluters.

Garland, the DC Circuit Court chief judge who is President Barack Obama’s pick to replace Antonin Scalia on the Supreme Court, faces a steep climb to confirmation in the face of fierce opposition from Senate Republicans.

But if Garland makes it to the Supreme Court, the battle over Obama’s flagship climate regulations will likely be one of his first big cases. That policy, known as the Clean Power Plan, aims to slash the nation’s carbon footprint by restricting greenhouse gas emissions from power plants. The Environmental Protection Agency built the plan on a provision of the Clean Air Act that allows it to set emissions standards for existing “stationary” sources (i.e., power plants, rather than, say, cars) and then leave it up to each state to choose how to reach that standard. The rule was immediately challenged by two dozen coal-reliant states, which have argued that it oversteps EPA’s legal authority because it applies to the whole electricity system rather than to individual power plants. Shortly before Scalia’s death, the Supreme Court voted 5-4 to put the plan on hold while Garland’s current colleagues in the DC circuit court weigh its legality.

The climate regulations will likely wind up in front of SCOTUS sometime next year. So, Garland’s record on cases involving the Clean Air Act—which many legal experts see as the world’s single most powerful piece of environmental law—is a helpful guide for how he might rule. Garland once described the Clean Air Act as “this nation’s primary means of protecting the safety of the air breathed by hundreds of millions of people.” [Continue reading…]

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On the nomination of Judge Merrick Garland to the Supreme Court

Lawrence Goldstone writes: With his nomination of Judge Merrick Garland to fill Supreme Court Justice Antonin Scalia’s seat, President Barack Obama has made clear the tone he wishes to strike with the nation. He faced a difficult choice: whether to nominate an eminently qualified liberal or an eminently qualified moderate. In opting for the latter, Obama has eschewed the standard Republican strategy of aiming every policy decision at the party’s most extreme faction, and instead sought to nominate a justice whom large swathes of both parties will see as appropriate to the high bench.

Garland, the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, is man whose academic, personal, and judicial credentials are such that Senator Orrin Hatch said just last week that the president “could easily name Merrick Garland, who is a fine man” to fill the seat, but “he probably won’t do that because this appointment is about the election, so I’m pretty sure he’ll name someone the [liberal Democratic base] wants.” In what is certain to cause Hatch to shift uncomfortably in his Judiciary Committee seat, Obama did precisely what the senator suggested and nominated an appellate court judge who has been lauded for a measured, non-ideological approach to the law.

Far more interesting, however, than Obama’s opening move is how Republicans will respond. Even before Scalia was buried, Republican Senate leaders announced that they would refuse to consider an Obama nominee. In choosing to strike preemptively, they locked themselves into a strategy that is somewhere between questionable and idiotic, and just may be the coup de grace to their political party, which now seems likely to be led by Donald Trump. [Continue reading…]

Garrett Epps writes: There are two possible interpretations of the president’s Garland strategy. The first is that Obama is playing on Republican fears of whomever a President Hillary Clinton might tap for the role and is trying to lure the Republicans into confirming an older, more moderate nominee. If they are successfully lured, then mission accomplished. If, however, Obama does not lure Republicans into confirming Garland, he will have at least embarrassed them and exposed the nakedly political nature of their tantrum.

The second interpretation — which I incline to — is that the meritocratic Boy Scout in Obama has called this shot. Garland is a terrific nominee and would make a wonderful justice. As Norman Ornstein of the American Enterprise Institute said Wednesday morning, Obama almost certainly made the pick “because he thought this was the best possible choice for the Supreme Court.” Obama might be unwilling to pass up a chance to make such an appointment, and to the extent there is political calculation behind it, the president is banking on the residual idealism of some Republican senators to respond. He may believe there is at least some chance Garland will be confirmed. If so, his belief in that reservoir of public spirit is a testament both to his own generosity and to his persisting naïveté.

Of course, the idea that Garland, at 63, is an older nominee who would serve a shorter time on the Court and pose less danger to the conservative legal agenda assumes facts not in evidence. Almost exactly a century ago, another Democrat named a Jewish nominee in an election year. The nomination was deeply controversial, and the Senate delayed hearings and a vote for four months — still a record for delay. The nominee was Louis D. Brandeis. He was 59 years old. Nearly a quarter-century later, at 82, he retired as perhaps the most influential liberal justice in American history. [Continue reading…]

Jay Michaelson writes: I was one of Judge Garland’s law clerks in his second year on the D.C. Circuit bench, back in 1998. Perhaps it sounds self-serving to say so, but Judge Garland is one of the hardest working, fairest-minded people I’ve ever met. He worked harder than any of us, staying late into the night, sometimes cutting out of the office to make time for his kids before coming back in for the midnight shift. Watching him stand alongside President Obama this morning filled me with respect and pride — in the moments when I could forget the disrespect he is soon to endure.

I also had some firsthand exposure to how he thinks. There was not a single case I worked on with him, from the most mundane Federal Energy Regulation Commission matter to a 20-plus-year-old civil rights case, in which politics played into his considerations. Conscience, sure — Judge Garland often reminded me that there were human beings on both sides of these contentious cases — but never ideology.

Not all judges on the D.C. Circuit were of that persuasion. I was friends with clerks for other judges, and some (whom, of course, I won’t name) would simply tell their clerks how they wanted the case to come out, leaving the clerks to get from point A to point B. That was never my experience with Judge Garland. [Continue reading…]

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President Obama introduces Merrick Garland as his Supreme Court nominee

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How Scalia’s death might help our planet

Eric Holthaus writes: Supreme Court Justice Antonin Scalia’s death at a remote Texas ranch has triggered a political earthquake and instantly changes the outlook for a host of high-profile issues the court is currently considering. But perhaps none of these are as consequential as the fate of the planet itself. As Climate Central’s John Upton wrote, “in dying, Scalia may have done more to support global climate action than most people will do in their lifetimes.”

Scalia’s death comes just days after the Supreme Court issued an unprecedented stay that temporarily blocked the implementation of the Clean Power Plan, Obama’s centerpiece climate legislation. The Clean Power Plan isn’t perfect, but it was on pace to double the already accelerating rate of coal-fired power plant retirements by 2040. Last week’s surprising action by the Supreme Court — dubbed a “nightmare scenario” by the Hill — raised substantial fears among environmentalists that the court’s conservatives might eventually block the Clean Power Plan completely. At the very least, the stay buys some time for Republican hopefuls in this year’s presidential election; if one were to win, he could just cancel the executive order that launched the plan in the first place.

The stay is still in place, but the climate law experts I talked to say Scalia’s death greatly boosts the eventual survival chances of the Clean Power Plan. A 4-4 court would guarantee that the lower court ruling would stand—and the D.C. Circuit Court is expected to approve the plan. [Continue reading…]

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The Supreme Court halted Obama’s climate change plan. This doesn’t bode well

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Scott Lemieux writes: Hours before New Hampshire’s primary voters made Donald Trump the favorite for the Republican presidential nomination Tuesday night – I can’t really believe this even as I type it – the US supreme court reminded us of why the upcoming presidential election is so important. On a party-line vote, the court temporarily stopped Barack Obama’s clean power plan from going into effect. This decision could well portend a future one that will have devastating consequences – not only for the climate but for the state of our lawmaking process.

The decision also underscores the urgency of the November elections in two ways: it will be a choice between a candidate who supports taking action against climate change and one who believes it should be ignored, and it will present a choice between a president who believes that the federal government has the authority to effectively regulate and one who believes that the supreme court should arbitrarily throw monkey wrenches into the political process. [Continue reading…]

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Supreme Court: If it’s worth it for corporations, pollution may be okay

Jay Michaelson writes: While LGBTs and healthcare reformers are still nursing their celebratory hangovers, the final Supreme Court case of the 2014-15 term just junked twenty years of environmental regulations.

The case, Michigan v. EPA, specifically dealt with the EPA’s regulation of mercury emissions from power plants under the Clean Air Act—a long, twenty-year process that has been opposed by industry at every turn, even as mercury air pollution from coal-fired power plants has ++irreparably poisoned the Great Lakes .

Today, the clock has been set back. In its third 5-4 decision of the day, with Justice Kennedy again providing the swing vote, industry has prevailed. Writing for the court, Justice Scalia held that the EPA had to factor in costs in deciding whether to regulate, not just how to regulate. [Continue reading…]

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Rainbow White House

Quartz: The White House was quick to celebrate today’s historic decision by the US Supreme Court that legalized gay marriage in all 50 states of the nation.

Soon after the Supreme Court announced its decision, the White House Facebook page changed its profile photo to a picture of the iconic building’s walls in the colors of the rainbow, the universal symbol of the gay rights movement.

At 11am, the President addressed a crowd in the Rose Garden behind the White House—whose walls, alas, remain white despite the Facebook change—heralding the Supreme Court’s decision as “justice that arrives like a thunderbolt.”

“This ruling is a victory for America,” Obama said. “This decision affirms what millions of Americans already believe in their hearts: When all Americans are treated as equal, we are all more free.”

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U.S. Supreme Court strikes down ‘born in Israel’ passport law

The Washington Post: The Supreme Court ruled Monday that the president alone has the power to recognize foreign nations, and it struck down as unconstitutional a congressional attempt to allow Americans born in Jerusalem to list Israel as their birthplace on passports.

President Obama and President George W. Bush had said the 2002 passport law embraces the interpretation that Jerusalem belongs to Israel, something the executive branch has long held should be settled by the parties in the Mideast. They refused to let the State Department honor such requests.

Justice Anthony M. Kennedy said Congress has a role in managing the nation’s foreign affairs but not in recognizing foreign nations and governments.

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Behind the Supreme Court’s Obamacare case, the Federalist Society’s hidden hand

By Nina Martin, ProPublica, March 3, 2015

The Supreme Court has no shortage of potentially precedent-shattering cases on its docket this term. But the one the justices are hearing tomorrow, King v. Burwell, could be the most consequential.

King focuses on the issue of whether low-income people who get insurance under the Affordable Care Act’s federal exchanges are entitled to tax subsidies. Much has been said (and written) about what could happen if the justices rule “no”: Millions of people in as many as 37 states could lose their health coverage. The political earthquake could be cataclysmic.

Yet, few reports have highlighted the role of the Federalist Society, the conservative law group whose ideas are at the intellectual heart of the King v. Burwell challenge. That’s not surprising, given that the group’s members have played a mostly behind-the-scenes part in King 2014 and in many of the most significant conservative legal victories of the last 30 years.

In a new book, “Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution,” Pomona College political scientist Amanda Hollis-Brusky channels her inner investigative journalist to trace the group’s influence on the courts, and especially, the Supreme Court.

Note: This interview has been edited for clarity and length.

Q. What is the Federalist Society? What did it grow out of?

A. The Federalist Society was founded in 1982 by a small group of conservative and libertarian law students at Yale and the University of Chicago. Many of the founders had worked on the Reagan presidential campaign, and when they arrived in their elite law schools, they noticed a profound mismatch between the ideas that were achieving political ascendancy 2014 about limited government and free markets and states’ rights 2014 and a liberal orthodoxy that was embedded in almost all major legal institutions of the time.

Flash forward 30 years: The Federalist Society has matured into a self-professed “society of ideas” that claims 40,000 to 60,000 members. These include every Republican-appointed attorney general and solicitor general since the 1980s, dozens of federal judges, and four sitting U.S. Supreme Court justices: Antonin Scalia, who was one of the organization’s original mentors at the University of Chicago; Clarence Thomas, Samuel Alito and John Roberts.

[Read more…]

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Is translating jihadist texts on the internet a crime?

Mark Joseph Stern writes: In the spring of 2005, Tarek Mehanna began translating radical Arabic books and videos into English for the website At Tibyan. The materials had an undeniable flavor of terrorism, encouraging readers to join al-Qaida and kill American soldiers in Iraq. But even the government acknowledges that Mehanna never translated anything at the direct behest of al-Qaida operatives—which is why it’s rather surprising that the government successfully prosecuted him for providing “material support” to a terrorist organization and sentenced him to 210 months in prison.

Everybody agrees that Mehanna supported al-Qaida’s cause; At Tibyan is a fairly popular terrorist forum, and Mehanna translated its content with the clear intention of swaying opinion toward the jihadist cause. But translating, publishing, and praising ideological texts, no matter how morally vile, is generally considered to be a basic free speech activity. Everyone knows that the First Amendment protects translations of Mein Kampf. Why did Mehanna’s translation of jihadist hosannas land him behind bars?

That’s the question Mehanna is asking the Supreme Court, which will decide whether to take his case later in September. If the justices do agree to review Mehanna’s conviction, it’ll be wading into a constitutional controversy at once timeless and novel. The court has long recognized that cheerleading for terrorism may eventually cross the line from free speech to a criminal act. But the Internet’s ability to spread ideas and connect like-minded people may now force the justices to reconsider that boundary. And if the court lets Mehanna’s conviction stand, it may wind up drawing the line dangerously close to the kind of Internet activity some of us engage in without a second thought.

The Supreme Court has been grappling with the question of dangerous speech for as long as America has been attempting to suppress dissent in the name of national security — that is, pretty much forever. For our first century or so, nobody thought that criminalizing anti-American speech raised a real First Amendment concern. But in a 1919 case called Abrams v. United States, Justice Oliver Wendell Holmes, joined by Justice Louis Brandeis, cracked the orthodoxy wide open, issuing a stunning dissent from the conviction of a revolutionary anarchist who advocated a violent overthrow of the U.S. government. Holmes described a constitutional command to tolerate anti-government speech, explaining that censorship of “opinions that we loathe and believe to be fraught with death” is unacceptable unless those opinions “imminently threaten” the country’s safety.

Today, Holmes’ view is more or less the law. But that hasn’t kept Congress from passing censorship laws on the theory that a certain group’s speech qualifies as a clear and present danger to the country. [Continue reading…]

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Everyone should know just how much the government lied to defend the NSA

Trevor Timm writes: If you blinked this week, you might have missed the news: two Senators accused the Justice Department of lying about NSA warrantless surveillance to the US supreme court last year, and those falsehoods all but ensured that mass spying on Americans would continue. But hardly anyone seems to care – least of all those who lied and who should have already come forward with the truth.

Here’s what happened: just before Edward Snowden became a household name, the ACLU argued before the supreme court that the Fisa Amendments Act – one of the two main laws used by the NSA to conduct mass surveillance – was unconstitutional.

In a sharply divided opinion, the supreme court ruled, 5-4, that the case should be dismissed because the plaintiffs didn’t have “standing” – in other words, that the ACLU couldn’t prove with near-certainty that their clients, which included journalists and human rights advocates, were targets of surveillance, so they couldn’t challenge the law. As the New York Times noted this week, the court relied on two claims by the Justice Department to support their ruling: 1) that the NSA would only get the content of Americans’ communications without a warrant when they are targeting a foreigner abroad for surveillance, and 2) that the Justice Department would notify criminal defendants who have been spied on under the Fisa Amendments Act, so there exists some way to challenge the law in court.

It turns out that neither of those statements were true – but it took Snowden’s historic whistleblowing to prove it. [Continue reading…]

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The U.S. supreme court needs to keep up with our cellphones – and the NSA

Yochai Benkler writes: Tuesday’s US supreme court arguments involved a seemingly basic legal question about the future of the Fourth Amendment: do police officers need a warrant to search the cellphone of a person they arrest? But the two privacy cases pit against each other two very different conceptions of what it means to be a supreme court in the first place – and what it means to do constitutional law in the 21st century.

“With computers, it’s a new world,” several justices reportedly said in the chamber. Are they ready to be the kinds of justices who make sense of it?

Cellphones expose so much of our most personal data that the decision should be a 9-0 no-brainer. The basic problem that makes it a harder call is that lawyers and judges are by training and habit incrementalists, while information and communications technology moves too fast for incrementalism to keep up. [Continue reading…]

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The McCutcheon decision: If this is not corruption, what is?

Robert Reich writes: The supreme court is composed of five justices appointed by Republican presidents, and four appointed by Democratic ones. In the McCutcheon v FEC case decided on Wednesday, the five Republican appointees interpreted the first amendment to protect the right of individuals to pour as much as $3.6m into a political party or $800,000 into a political campaign.

The decision by those justices allows individual donors to buy – and federal officeholders to solicit – unparalleled personal influence in Washington. McCutcheon drowns out the voices of ordinary citizens.

Presumably, the individuals who were of concern to the majority of the court have incomes larger than the median US family income of roughly $50,000 a year and wealth in excess of the median American family’s wealth of approximately $70,000. It is very likely that these individuals have huge incomes and enormous wealth.

The decision rests on the court’s dubious finding that such spending does not give rise to corruption. That’s baloney, as anyone who has the faintest familiarity with contemporary American politics well knows. As Justice Stephen Breyer noted in his dissenting opinion: “where enough money calls the tune, the general public will not be heard”.

The majority’s decision to open the floodgates to big money would be less important if the distribution of income and wealth in America were more equal. But it has become extraordinarily unequal. Together, the richest 400 Americans now possess more wealth than the bottom half of the American population. A handful of billionaires are, at this moment, deciding on whom to place their multi-million dollar bets in the 2014 midterm election. The McCutcheon decision makes it easier for them to do so than ever before. They don’t need to go through political action committees or so-called “social welfare” organizations. The rich can now make their bets directly.

We have returned to the gilded age of the late 19th century, when the lackeys of robber barons placed sacks of money on the desks of pliant legislators. If this is not corruption, what is? [Continue reading…]

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Supreme Court delivers another blow to American democracy

The New York Times reports: The Supreme Court on Wednesday issued a major campaign finance decision, striking down some limits on federal campaign contributions for the first time. The ruling, issued near the start of a campaign season, will change and most likely increase the already large role money plays in American politics.

The decision, by a 5-to-4 vote along ideological lines, with the Court’s more conservative justices in the majority, was a sequel of sorts to Citizens United, the 2010 decision that struck down limits on independent campaign spending by corporations and unions. But that ruling did nothing to affect the other main form of campaign finance regulation: caps on direct contributions to candidates and political parties.

Wednesday’s decision in McCutcheon v. Federal Election Commission, No. 12-536, addressed that second kind of regulation.

It did not affect familiar base limits on contributions from individuals to candidates, currently $2,600 per candidate in primary and general elections. But it said that overall limits of $48,600 by individuals every two years for contributions to all federal candidates violated the First Amendment, as did separate aggregate limits on contributions to political party committees, currently $74,600.

Chief Justice John G. Roberts Jr., writing for four justices in the controlling opinion, said the First Amendment required striking down the limits. “There is no right in our democracy more basic,” he wrote, “than the right to participate in electing our political leaders.”

Dissenting from the bench, Justice Stephen G. Breyer called the decision a blow to the First Amendment and American democracy. “If the court in Citizens United opened a door,” he said, “today’s decision may well open a floodgate.” [Continue reading…]

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Peter Van Buren: The next battleground in the war on whistleblowers

Who can keep up?  The revelations — mainly thanks to the documents Edward Snowden took from the National Security Agency — are never-ending.  Just this week, we learned that GCHQ, the British intelligence agency whose activities are interwoven with the NSA’s, used a program called Optic Nerve to intercept and store “the webcam images of millions of internet users not suspected of wrongdoing” (including Americans).  As the Guardian reported, “In one six-month period in 2008 alone, the agency collected webcam imagery — including substantial quantities of sexually explicit communications — from more than 1.8 million Yahoo user accounts globally.”  Yahoo is now outraged; the Internet Association, a trade group for the giants of the industry, has condemned the program; and three U.S. senators announced an investigation of possible NSA involvement.

At about the same time, Glenn Greenwald revealed that GCHQ was engaging in “extreme tactics of deception and reputation-destruction.”  These included “‘false flag operations’ (posting material to the internet and falsely attributing it to someone else), fake victim blog posts (pretending to be a victim of the individual whose reputation they want to destroy), and posting ‘negative information’ on various forums.” Again, this was evidently happening with the knowledge, if not collusion, of the NSA.

Meanwhile, with Washington entering a self-proclaimed era of “reform” when it comes to spying on Americans, we just got a striking you-can’t-win-for-losing Catch-22 message from the front lines of the surveillance wars. Claiming that recent pending lawsuits make it necessary, the Obama administration has requested permission to hang on to phone metadata “on billions of U.S. phone calls indefinitely instead of destroying it after five years.” Hmmm… this may be the only example we have of the U.S. intelligence community fighting tooth and nail to stick to the letter of the law.

And mind you, that’s just dipping a toe in the positively oceanic global surveillance waters.  It’s been nine months since the Snowden revelations began and who can keep it all straight?  Nonetheless, it’s possible to put everything we know so far into a simple message about our American world-in-the-making: the surveillance part of the national security state has, in its own mind, no boundaries at all. As a result, there is no one, nor any part of communications life on this planet, that is out of bounds to our surveillers.

Given what we now know, it’s easy to ignore what we don’t know about how our government is acting in our name. That’s why the figure of the whistleblower — and the Obama administration’s urge to suppress whistleblowing of any sort — remains so important. How are we ever to know anything about the workings of that secret state of ours if someone doesn’t tell us? As a result, TomDispatch remains dedicated to documenting the Obama administration’s ongoing war against those who have the urge to bring the secret workings of the national security state to our attention — especially in cases like Robert MacLean’s, where otherwise little notice is paid in the mainstream media.  So today, we’re publishing a follow-up to our earlier story about MacLean, again by TomDispatch regular Peter Van Buren. Himself a State Department whistleblower, Van Buren takes another deep dive into the dark territory he has dubbed post-Constitutional AmericaTom Engelhardt

Silencing whistleblowers Obama-style
Supreme Court edition?
By Peter Van Buren

The Obama administration has just opened a new front in its ongoing war on whistleblowers. It’s taking its case against one man, former Transportation Security Administration (TSA) Air Marshal Robert MacLean, all the way to the Supreme Court. So hold on, because we’re going back down the rabbit hole with the Most Transparent Administration ever.

Despite all the talk by Washington insiders about how whistleblowers like Edward Snowden should work through the system rather than bring their concerns directly into the public sphere, MacLean is living proof of the hell of trying to do so. Through the Supreme Court, the Department of Justice (DOJ) wants to use MacLean’s case to further limit what kinds of information can qualify for statutory whistleblowing protections. If the DOJ gets its way, only information that the government thinks is appropriate — a contradiction in terms when it comes to whistleblowing — could be revealed. Such a restriction would gut the legal protections of the Whistleblower Protection Act and have a chilling effect on future acts of conscience.

Having lost its case against MacLean in the lower courts, the DOJ is seeking to win in front of the Supreme Court. If heard by the Supremes — and there’s no guarantee of that — this would represent that body’s first federal whistleblower case of the post-9/11 era. And if it were to rule for the government, even more information about an out-of-control executive branch will disappear under the dark umbrella of “national security.”

[Read more…]

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