The 21 young plaintiffs involved in the Juliana v. US climate change lawsuit sponsored by Our Children’s Trust got some good news from the US Supreme Court on Friday night. In a 3 page unsigned order, the court declined the government’s request to halt the litigation and remanded the case to the trial court in Oregon.
Procedural vs Substantive
There’s a lot to unpack in this legal action and it is important to understand there are two tracks involved in every lawsuit. Track one is substantive — has the moving party proven its case? The other is procedural — is the suit properly before the court? So far, everything that has happened in the Juliana v. US case has involved procedural matters, with the US government — first under Obama and later under Trump — insisting the suit violates the separation of powers provisions of the Constitution.
In theory, the legislative and executive branches get to set national policy, not the courts. In a very real sense, the plaintiffs in Juliana are attempting to do an end run around all that separation of powers mumbo jumbo by proving those two branches have utterly failed to protect the citizens of the United States from the environmental and health impacts of burning fossil fuels.
Is A Clean Environment A Public Right?
Their argument is that the federal government holds the environment in trust for the people of the nation and has a duty to provide them with a clean environment that is fit for human habitation. That seems like it should be self evident, but in the bizarre world of the law, nothing is as it seems at first blush.
Can the courts step in to force the other branches of government to perform their constitutionally mandated duty if they fail to do so in a timely and effective fashion? That is the question that Juliana poses. “As the government has maintained since first moving to dismiss this suit in 2016, [the] assertion of sweeping new fundamental rights to certain climate conditions has no basis in the nation’s history and tradition — and no place in federal court,” US Solicitor General Noel Francisco wrote in his brief asking the Supreme Court to halt the Juliana law suit.
If the high court does not step in now to shut down the litigation, “it could well be years into the future” before the government could “seek relief from such an egregious abuse of the civil litigation process and violation of the separation of powers,” Francisco added.
He is right, of course. The Juliana case is novel in that is seeks to do through the courts — which like to pretend they are non-political — that which is normally done through the political process. If your representatives in Congress are not representing your interests, vote them out and elect someone who will. If your president appoints fossil fuel stooges to run the EPA, vote him out and elect someone who will do the job the agency was created to do.
Easy to say. Not so easy to do. If the political process is hijacked by rabid climate change deniers at a time when an environment suitable for human existence is threatened, the courts have no choice but to put aside legal niceties and force the hand of the Congress and the president. That’s what the Juliana case is really all about, although the plaintiffs can’t say that openly.
Parsing The Words Of The Constitution
Instead, they argue that the plain words of the Constitution imply an obligation on the part of the government to provide citizens with a clean environment that won’t kill them prematurely. That notion should be intuitively obvious to the most casual observer, but the Constitution doesn’t actually say that in so many words.
And that gets to the heart of the matter. Conservative doctrine as it has developed over the past 50 years — with copious financial support from the Koch brothers — has created what is known among constitutional scholars as the doctrine of originalism. Simply put, the Constitution means what it says as written and activist judges who think things like a right to privacy, or integrated schools, or a woman’s right to control her own body are included in that document are nothing less than legal terrorists intent on destroying the Constitution.
Originalists loath the idea of the Constitution being a “living, breathing document.” Instead, they prefer to read the notes taken during the Constitutional Convention in an attempt to discover what the framers meant. The fact that there were no fossil fuels in 1786 is irrelevant, they argue.
It all goes back to Chief Justice Earl Warren, who was appointed by Dwight Eisenhower and went on to lead a Supreme Court that “found” all sorts of new ideas embedded in the fabric of the Constitution. That process made conservatives spit fire out of their noses and led to billboards demanding “Impeach Earl Warren!” cropping up along the nation’s highways. Eisenhower later admitted appointing Earl Warren was the biggest mistake of his presidency.
Since then, conservatives have railed repeatedly against so-called “activist judges,” while delighting in their own form of activism in such celebrated cases as Bush v. Gore and Citizens United. Activism is perfectly fine with conservatives, as long as it favors their cause.
All of these cross currents are swirling around in the background of the Juliana litigation. “This case clearly poses profoundly important constitutional questions, including questions about individual liberty and standing, the answers to which depend upon the full evaluation of evidence at trial,” the lawyers for the plaintiffs in Juliana wrote in their brief to the Supreme Court. “These young plaintiffs, mere children and youth, are already suffering irreparable harm which worsens as each day passes with more carbon dioxide accumulating in the atmosphere and oceans.”
The fact that the plaintiffs suing the federal government are so young apparently offends the government to no end. They “seek nothing less than a complete transformation of the American energy system — including the abandonment of fossil fuels — ordered by a single district court at the behest of ‘twenty-one children and youth,’ ” Solicitor General Francisco wrote in his brief to the court. How dare they! Impudent upstarts!
You can almost see the smoke coming out of Francisco’s ears writing that. Why, these young whippersnappers! We need to teach them a lesson they will long remember. They should bend their knees and submit to what we decide is best for them.
L. Frank Baum once wrote a story about Washington, DC, which he called The Emerald City. At the end, Dorothy’s little dog Toto pulls back the curtain to reveal The Great And Powerful Oz to be nothing more than a charlatan running the show through the use of smoke and mirrors.
Baum didn’t have a high opinion of what went on in Washington. Some of you may see an analogy between the young people suing the government and the irascible Toto. These young people are speaking truth to power and are unafraid. God speed.
Leaving The Door Open
The Supreme Court’s latest decision suggests the Juliana case is now in a different posture than it was the last time the government asked the 9th Circuit Court of Appeals to overturn the trial court and dismiss the case. It suggests the appeals court could see things differently this time around. It could be right.
Behind all the drama of the Bart Kavadrunk confirmation process, conservatives are busy packing the federal courts with as many ultra-right-wing judges as they can while they control things in Washington. The 9th Circuit court has been a constant thorn in the side of reactionaries for its persistent liberal tilt. The powers that be in the nation’s capitol are eager to make the 9th more “balanced.” In other words, they want to capture the courts just as they have captured the legislative and executive branches. At this moment in time, there is literally nothing to stop them from doing precisely that.
The Juliana v. US case is a long, long way from a final resolution and the government will have many more opportunities to derail the litigation. For those of us on the outside looking in, it is embarrassing to see the lengths our government will go to in order to kowtow to the fossil fuel industry and defend corporations at the expense of people. Something to keep in mind when you cast your votes next Tuesday.
“We’ve been confident throughout this case that we would get to trial, and I believe we will get to trial,” Julia Olson, the attorney for the youths and executive director of Our Children’s Trust, told The Washington Post after the Supreme Court issued its ruling last Friday. “We have overcome everything the government has thrown at us. It is not luck. It is the strength of the case and the strength of the evidence and the strength of the legal arguments we are making.”
Are the courts the best place to make policy decisions? Of course not. But when human lives are at stake — when the very existence of a sustainable environment is threatened — somebody has to clear away the deadwood and be the responsible adults in the room, even it those people are children.