This Time, A Coup By ‘The Suits’

The next Republican coup d’etat will not resemble the violent MAGA/QAnon insurrectionists who stormed the Capitol on January 6, 2021. No, this time it is a lawyerly murdering of American democracy by “the suits,” corrupt Republican lawyers and the Republican judges, that the “Grim Reaper of Democracy” Sen. Mitch McConnell has been plotting for decades.

It is a slow-motion coup d’etat, one Supreme Court decision at a time. Democracy dies a death by a thousand cuts, and a demoralized American public loses faith and the will to resist our abusers.

But we do not have to accept a dystopian future of a White Christian Nationalist Republican authoritarian tyranny of the minority.

Naomi Klein explains at The Intercept, The Supreme Court’s Shock-and-Awe Judicial Coup:

THIS IS IT. The moment for President Joe Biden and Congress to challenge the underlying legitimacy of the U.S. Supreme Court and advance an aggressive climate action agenda. There will be no better moment to take this stand for a transformed court, nor a more fateful one. Rep. Alexandria Ocasio-Cortez is right: “We need to reform or do away with the whole thing, for the sake of the planet.”

Over the last few days, we have witnessed a shock-and-awe judicial coup, from stripping people of the right to terminate pregnancies (Dobbs v. Jackson Women’s Health Organization), to weakening the sovereign right of Indigenous tribes to enforce the law on their lands (Oklahoma v. Castro-Huerta), to interfering with the rights of states to regulate the carrying of firearms (New York State Rifle & Pistol Association Inc. v. Bruen), to enabling a return to Christian prayer in public schools (Kennedy v. Bremerton School District).

And now this: a decision that eviscerates the Environmental Protection Agency’s power to regulate a major source of the carbon emissions destabilizing our planet. The EPA can still regulate CO2, but its capacity to regulate under the Clear Air Act is significantly reduced. It represents the culmination, as my colleague Sharon Lerner reports, of decades of “plotting against environmental regulations” by Koch Industries, and as The Lever has reported, this entire court has been shaped by the dark-money-bankrolled Judicial Crisis Network, which is is surely gearing up to toast the bountiful return on their patient investments this July 4 weekend.

History contains crossroads when a single set of decisions can alter the trajectory of a people — or even a planet. The Biden administration’s response to the Supreme Court’s 6-3 EPA ruling, hot on the heels of the other outrageous power grabs, is a moment like that. No juncture offers greater opportunity for courageous, transformational leadership, should such a thing be on offer anywhere in Washington, D.C.

Biden came to office promising an “all of government” approach to the climate crisis. It was a defining issue in the Democratic Party primaries and a winning issue for Biden in the general election. Why? Because voters are now fully engaged with the climate crisis — and they reliably are most engaged in the summer, when our warming world speaks loudest. But last fall, Biden let Sen. Joe Manchin push climate action way down his political agenda — and suddenly we stopped hearing much about it at all. I suppose the smartest guys in the room thought it was starting to smell like defeat. Thanks to great advice like that, Biden managed to demoralize much of his base, and some of his best appointees resigned.

With the court’s EPA ruling, Biden now has a chance to put climate back at the top of the agenda. He should seize it. As Justice Elena Kagan wrote in the dissent, “The court appoints itself — instead of Congress or the expert agency — the decision maker on climate policy.” she wrote. “I cannot think of many things more frightening.” A great many voters, if the stakes are clearly explained and kept top of mind through consistent messaging, will agree.

In fact, no issue gives the Democrats a platform for a more powerful or more unifying message than this Supreme Court ruling — both to radically reform the court and to communicate the dire urgency of the climate crisis and the need for bold policy. Moreover, by using the court’s EPA ruling to finally do more than send out opportunistic fundraising emails — and instead to draw the line and move to transform an obviously out-of-control, extremist court — Biden and the Democrats would be doing precisely what they have never done and what young climate activists have been pleading with them to do for years: Treat the climate emergency like an emergency.

The Democrats’ base would take tremendous heart from seeing this kind of emergency footing response, but it would be most meaningful for young people, many of whom can vote. And those voices should not be discounted. This extremist court has positioned itself as an advocate for youth, children, and the unborn — from abortion to school prayer. Its willingness to light the future on fire for all kids alive today and yet to come puts the lie to this absurd claim. If the Democrats turn the EPA decision into a pivot point, not just for speeches and poems and yoga poses but for decisive action in defense of the future, it would upend the debate.

They should, moreover, connect the dots between the individual rulings and their underlying logic. For several of these justices, their casualness about climate apocalypse is inextricable from their Christian fundamentalist takes on abortion and prayer (and soon, given the chance, gay marriage and trans rights). They aren’t worried about the world burning because they think we are in the End Times and that their faith will protect them (and failing that, that their wealth and their guns will, which is the way Republicans enact the Rapture without divine intervention). Biden should get biblical on these theocrats and call them on flouting the duty to care for all of creation.

The rolling judicial coup coming from this court is by no means over. Next term, the Supreme Court will hear a redistricting case that could well make it far easier to concoct a legal pretense for overriding the popular vote in elections in favor of state-appointed electors — the very thing that Donald Trump attempted but failed to do, because enough people were afraid of ending up in jail. There is no reason to believe that a group of people whose very presence on the bench required grotesque abuses of democracy would somehow draw the line at thwarting it. The moment to stop them from getting the chance is right now.

Biden and the Democrats are currently careening toward a wave of defeats. But it’s not too late to get back on track. They have just been handed a winning platform: Use the Supreme Court’s attack on urgent carbon control as a catalyst to build a more meaningful democracy and take transformational climate action at the same time. If they decide to run with it, everybody on this planet wins. If they refuse, they deserve every loss coming their way.

Ian Millhiser adds, The Supreme Court’s big EPA decision is a massive power grab by the justices (excerpt):

West Virginia v. Environmental Protection Agency strikes down a federal environmental regulation of power plants that never took effect, that the Biden administration has no intention of reinstating, and that would have accomplished absolutely nothing even if it had be enforced.

Nevertheless, the Court voted along ideological lines to strike down this regulation that the EPA drafted under authority granted by the Clean Air Act, claiming that it amounts to an “extraordinary” overreach by the EPA. And their decision has enormous implications both for the environment and for the federal government more broadly.

At the very least, the West Virginia decision strips the EPA of its authority to shift energy production away from dirty coal-fired plants and toward cleaner methods of energy production — although market forces have thus far accomplished much of this shift on their own, because coal-fired plants are often more expensive to operate than cleaner plants. The decision could also lead to additions limits on the EPA’s ability to regulate that industry going forward.

The West Virginia decision confirms something that has been implicit in the Supreme Court’s recent decisions governing federal agencies’ power to issue binding regulations under authority granted by Congress: When a majority of the Supreme Court disagrees with a regulation pushed out by a federal agency, the Court has given itself the power to veto that regulation — and it will do so by invoking something known as the “major questions doctrine.”

Under this doctrine, the Court explained in a 2014 opinion, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Thus, if a majority of the Court deems a regulation to be too significant, it will strike it down unless Congress very explicitly authorized that particular regulation.

This doctrine comes from nowhere. Last week, the Court said that abortion is unprotected by the Constitution — leaning heavily on the fact that abortion is not mentioned in the Constitution. But the the major questions doctrine is also mentioned nowhere in the Constitution. Nor can it be found in any statute. The justices made it up. And, at least during President Joe Biden’s administration, the Court has wielded it quite aggressively to veto regulations that the Court’s conservative majority finds objectionable.

Roberts’s majority opinion in West Virginia does put some flesh on the fairly bare bones the justices have previously used to describe when they will declare something to be a “major question.” Roberts faults the EPA for issuing a novel kind of regulation pursuant to a “long-extant” statute that had not previously been used to justify similar actions. He claims that the EPA relied on an “ancillary provision” of the Clean Air Act, rather than a more central provision of that law. And he criticizes the EPA for issuing a regulation which resembles bills that Congress previously considered but did not enact.

But these judgments are divorced from the text of the Clean Air Act itself. And Roberts admits that the major questions doctrine can nuke a regulation even when there is a “colorable textual basis” supporting that regulation — that is, when the actual words of a federal law could support the action taken by a federal agency.

The bottom line after the West Virginia decision is that agencies may still exercise regulatory authority, but only subject to a judicial veto. The Supreme Court has effectively placed itself at the head of much of the executive branch of the federal government.

We have a rogue Supreme Court which is unaccountable and above the law and is abusing it power. This cannot be allowed to stand.