Climate Keeps on Changing

Supreme Court limits EPA’s power to combat climate change

The decision risks putting the U.S. further off track from President Biden’s goal of running the power grid on clean energy by 2035

By Robert Barnes and Dino Grandoni and published in The Washington Post 6/30/2022

The Supreme Court on Thursday sharply cut back the Environmental Protection Agency’s ability to reduce the carbon output of existing power plants, a blow to the Biden administration’s plans for combating climate change.

The ruling infuriated President Biden and environmentalists, who said it raised formidable obstacles to the United States meeting its climate goals, including the president’s goalof running the U.S. power grid on clean energy by 2035. “Another devastating decision that aims to take our country backwards,” Biden said.

But the Republican-led states that challenged the broad authority the EPA claimed said it was a dutiful examination of the Clean Air Act and a proper acknowledgment that Congress had not given such vast powers to the agency.

The vote was 6 to 3, with Chief Justice John G. Roberts Jr. writing for the court’s majority. And it reinforced an emerging view from its conservatives that too much power is vested in executive branch agencies that act without clear authority from Congress.

“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’ ” Roberts wrote, referring to a court precedent. “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme.”

Supreme Court’s historic EPA ruling, explained

1:29Default Mono Sans Mono Serif Sans Serif Comic Fancy Small CapsDefault X-Small Small Medium Large X-Large XX-LargeDefault Outline Dark Outline Light Outline Dark Bold Outline Light Bold Shadow Dark Shadow Light Shadow Dark Bold Shadow Light BoldDefault Black Silver Gray White Maroon Red Purple Fuchsia Green Lime Olive Yellow Navy Blue Teal Aqua OrangeDefault 100% 75% 50% 25% 0%Default Black Silver Gray White Maroon Red Purple Fuchsia Green Lime Olive Yellow Navy Blue Teal Aqua OrangeDefault 100% 75% 50% 25% 0%The decision on June 30 sharply cut back the Environmental Protection Agency’s ability to reduce the carbon output of power plants. (Video: Libby Casey/The Washington Post)

Dangerous new hot zones are spreading around the world

In similar fashion, the court has reined in the Centers for Disease Control and Prevention for enacting an eviction moratorium during the pandemic, and the Occupational Safety and Health Administration from far-reaching vaccine-or-test requirements. Roberts was joined in the EPA decision by Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

Gorsuch wrote separately to elaborate: “When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands. But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.”

Justice Elena Kagan, writing for herself and fellow liberal justices Stephen G. Breyer and Sonia Sotomayor, countered that the majority had empowered the wrong people to pass judgment on an existential dilemma.

“The Court appoints itself — instead of Congress or the expert agency — the decisionmaker on climate policy,” Kagan wrote. “I cannot think of many things more frightening.”

Kagan began her dissent with familiar warnings about the calamity ahead. With higher seas, fiercer wildfires and other consequences of climate change apparent, the world is already in unprecedented territory. Global average temperatures have increased more than 1 degree Celsius (1.8 degrees Fahrenheit) since the preindustrial era, largely because of pollution from burning fossil fuels.

If warming exceeds 1.5 degrees Celsius (2.7 degrees Fahrenheit), scientists warn, sea levels could surge, ecosystems collapse, and millions of additional people would be at risk from heat, hunger, disaster and disease.

Countries’ climate pledges built on flawed data, Post investigation finds

Biden hoped to lead by example to convince other countries to cut emissions and help the world keep warming under the 1.5 degrees threshold.Now such diplomacy has become more difficult for Biden, especially as countries scramble for new sources of oil and gas after Russia’s invasion of Ukraine.

The president said he will “continue using lawful executive authority, including the EPA’s legally-upheld authorities,” work with cities and states to pass laws, and “keep pushing for additional Congressional action, so that Americans can fully seize the economic opportunities, cost-saving benefits, and security of a clean energy future.”

The decision rested on what is called the “major questions” doctrine, which says Congress must “speak clearly” when authorizing agency action on significant issues.

In his ruling, Roberts chastised the EPA for finding “newfound power in the vague language” of the Clean Air Act, arguing a law written a half-century ago never allowed the EPA to force electric utilities to switch from coal to solar, wind and other renewable forms of generation.

“It is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme,” Roberts wrote. “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

In her dissent, Kagan said it made sense for Congress in the Clean Air Act to leave to government experts the best way to solve problems that might have been unforeseeable when the law was written.

“The enacting Congress told EPA to pick the ‘best system of emission reduction’ (taking into account various factors),” Kagan wrote. “In selecting those words, Congress understood — it had to — that the ‘best system’ would change over time. Congress wanted and instructed EPA to keep up. To ensure the statute’s continued effectiveness, the ‘best system’ should evolve as circumstances evolved — in a way Congress knew it couldn’t then know.”

She pointed out that the Biden administration has not issued its own regulations.

“That new rule will be subject anyway to immediate, pre-enforcement judicial review,” Kagan wrote. “But this Court could not wait — even to see what the new rule says — to constrain EPA’s efforts to address climate change.”

Tracking Biden’s environmental actions as he unwinds Trump’s policies

Environmentalists and those who challenged EPA’s authority were divided over what comes next.

Richard Lazarus, a Harvard environmental law professor, said that the Supreme Court was insisting on a clear statement from what it knows is an “effectively dysfunctional” body.

“The Court threatens to upend the national government’s ability to safeguard the public health and welfare at the very moment when the United States, and all nations, are facing our greatest environmental challenge of all: climate change,” Lazarus wrote in an email.

Others noted the decision still allows for the EPA to regulate power plants’ greenhouse gas emission. It just cannot mandate that utilities shift to renewables after Thursday’s ruling.

“There is something of a silver lining here,” said Jody Freeman, also a Harvard Law School professor. “It leaves a pathway for EPA to still set meaningful standards.”

EPA officials, too, say they have other tools to reduce power plants’ pollution. “While I am deeply disappointed by the Supreme Court’s decision, we are committed to using the full scope of EPA’s authorities,” EPA Administrator Michael Regan said in a statement.

Others predicted Thursday’s ruling may invite future court challenges to other federal regulations.

“The consequences potentially reach far beyond EPA and the Clean Air Act,” said Lisa Heinzerling, an environmental law professor at Georgetown University. “This is a big statement on how it intends to act moving forward.”

West Virginia Attorney General Patrick Morrisey (R), who led the lawsuit against the EPA, suggested he may bring more cases based on the “major questions” doctrine. “It could be a very positive tool in the ongoing fight against federal overreach,” he told reporters Thursday.

The ruling comes as Biden struggles to pass a major climate bill through an evenly split Senate, compounding Democrats’ efforts to address rising temperatures.

Senate Majority Leader Charles E. Schumer (D-N.Y.) accused the court of “pushing the country back to a time when robber barons and corporate elites have complete power and average citizens have no say.”

Senate Minority Leader Mitch McConnell (R-Ky.) praised the ruling.

“The Court has undone illegal regulations issued by the EPA without any clear congressional authorization and confirmed that only the people’s representatives in Congress — not unelected, unaccountable bureaucrats — may write our nation’s laws,” McConnell said in a statement.

The United States is the world’s second-biggest annual emitter of greenhouse gases, and is responsible for a greater portion of historical emissions than any other nation.

West Virginia v. EPA is the latest battle pitting the coal industry and Republican-led states against a Democratic administration that proposes sweeping changes to the way the nation’s power sector produces electricity.

The Supreme Court in 2016 stopped the Obama administration’s plan to drastically reduce power plants’ carbon output. The plan never went into effect, but its emission-reduction goals were met ahead of schedule because of economic conditions that made coal-fired plants more expensive.

A more lenient plan was promulgated by the Trump administration, which said its reading of the law limited the EPA’s actions to regulating emissions at a specific site instead of across the system, a restriction that has come to be known as “inside the fence.”

But on the last day of the Trump administration, a divided panel of the U.S. Court of Appeals for the D.C. Circuit said that was an intentional “misreading” of the law.

“The EPA has ample discretion in carrying out its mandate,” the decision concluded. “But it may not shirk its responsibility by imagining new limitations that the plain language of the statute does not clearly require.”

As a result, the Trump rules were struck, the Obama rules were not reinstated, and the Biden administration has yet to formulate its plan.

For that reason, the administration and environmentalists were stunned when the Supreme Court took the case. The Biden administration advised it to simply vacate the D.C. appeals court decision and wait to make a more intensive review of the EPA’s powers after new regulations were proposed.

The case deeply divided the business community. Mining companies and other firms in the coal sector urged the court to rein in the EPA, arguing coal is necessary for keeping electricity prices low and the grid reliable. Apple, Tesla and other major tech and retail firms investing in renewable energy, meanwhile, told the court that “stable, nationwide rules” are needed to avert climate disaster.

Fixing the Supreme Court

Supreme Court Exposes America’s Broken Constitution

Written by Daniel Jennings and published in 6/30/2022

The US Supreme Court’s horrendous Dobbs decision exposes how America’s Broken Constitution is failing us.

To explain, Dobbs v. Jackson Women’s Organization reverses Roe v. Wade and gives states and the federal government the right to ban abortion. Yet, Pew estimates 61% of American adults said abortion should be legal in most cases in a March 2022 poll.

Hence, the US Supreme Court ignores popular opinion. Worse, some Supreme Court Justices seem they have a God-given duty to ignore public opinion. In his Dobbs opinion Justice Samuel A. Alito Jr. writes, “the Judicial Branch derives its legitimacy, not from following public opinion, but from deciding by its best lights.”

Nine-Would-Be Dictators

“Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.” John Emerich Edward Dalberg Acton, first Baron Acton.

Therefore, America has nine would-be dictators sitting in a Temple like building in Washington, DC, who think they can behave like gods on Mount Olympus or the Soviet Politburo. To elaborate, the Supremes think they can do whatever they want and face no consequences.

Nor is just abortion on which the Supremes ignore public opinion. In a case called New York State Rifle & Pistol Association Inc. v. Bruen ruled a New York State law requiring a license to carry concealed guns unconstitutional. A 16 June 2022 Siena College Research Institute poll found 79% of New Yorkers support the Sullivan Act, the law of New York State Rifle & Pistol struck down.

This situation exists because of our broken Constitution. In particular, I think two provisions to the Constitution Article III and Article I, Section Three create the menace of an all-powerful US Supreme Court.

How the Constitution Creates an All Powerful US Supreme Court

“Unlimited power is apt to corrupt the minds of those who possess it.” William Pitt the Elder, Earl of Chatham, British Prime Minister.

To explain, Article III creates a Supreme Court but sets no rules or guidelines for that Court.

Article III Section 1 states: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”

Article III does not define the Supreme Court, set any qualifications for its members, or define a process for selecting justices. Indeed, it does not even require justices to be attorneys. Nor does Article III define the Justice’s powers or the number of justices.

Thus, we have Supreme Court Justices who serve for life and can only be removed by a two-thirds vote of the US Senate. Hence, Supreme Court justices are unaccountable to the people.

I don’t blame the Constitution’s author James Madison for this mess. Madison could not have known what havoc his vague paragraph could unleash. Notably, there was no such thing as a Supreme Court anywhere on Earth in 1787. America’s Supreme Court was the first.

Instead, I blame Congress for not exercising any authority over the Supreme Court or trying to limit its power. Worse, Congress has made no effort to bring America’s Supreme Court system into line with foreign courts.

America’s Undemocratic US Senate

Article 1, Section 3 of the Constitution states “The Senate of the United States shall be composed of two Senators from each State.”

I think Article 1, Section 3, is bad because it makes no provision for population differences between the states. Hence, America’s most populous state, California with 39.613 million people and least populous state Wyoming, with 581,075 people each have two Senators.

In detail, a US Senator from California represents 19.81 million people while a Wyoming US Senator represents 290,538 people. Thus, a Wyoming US Senator represents fewer people than the population of Riverside, California, (327,569).

Article 1, Section 3 creates an unrepresentative US Senate that appoints an Unrepresentative US Supreme Court. For example, I estimate there are 14 US states with populations under two million. Yet 28 US Senators represent those stations.

Furthermore, I estimate the combined population of America’s two most populous states, Texas and California, have a combined population of 70.634 million people. Four US Senators represent those 70.634 million people.

I estimate America’s seven least populous states have a combined population of 4.601 million. Yet 14 US Senators represent those states. To elaborate, those states are Delaware, South Dakota, North Dakota, Alaska, Vermont, and Wyoming.

This affects the US Supreme Court because the Senate approves the President’s Supreme Court nominees. Furthermore, Article III gives low-population, mostly white rural, and Conservative Christian states more seats in the Senate.

Consequently, America has a Senate full of people who see nothing wrong with Dobbs v. Jackson Women’s Organization and New York State Rifle & Pistol. Even though most Americans disagree with those decisions. In such an environment, it is impossible to hold the Supreme Court justices accountable for their actions.

What We Can Do About the US Supreme Court?

I think there are many reforms we could make to the US Supreme Court to make it more accountable and democratic. Those reforms include:

1. Term Limits

Currently, federal judges, including US Supreme Court Justices, serve for life, which makes them unaccountable. We could change this by restricting Federal Judges (including Supreme Court Justices) to a 10-year term. At the end of the term, Congress will have to approve a second term. I would also restrict Supreme Court Justices to 20 years or two terms. Hence, no more service for life.

2. Increase the Size of the US Supreme Court

The US Supreme Court is too small to litigate for a nation of 334.9 million people. We need a larger US Supreme Court that is more representative of the nation. A larger court will make the US closer to the world standard. For example, India has a Supreme Court with 32 members. I suggest a US Supreme Court of 35 members. One advantage to this arrangement is that Justices will could form committees to handle more cases and delegate authority.

3. Depoliticize the Nomination of US Supreme Court Justices

My suggestion take the nomination of Supreme Court Justices away from the president. Instead, turn it over to a committee of law professors or judges. The US Senate could still approve the nomination, but the beginning of the process will be unpolitical.

4. Have a group of ordinary citizens that reviews the Supreme Court and its decisions

Give this body the power to suspend Supreme Court Justices and refer them to Congress for impeachment.

5. Make it easier to impeach Supreme Court Justices

Currently, you need a two-thirds vote of the US Senate to impeach a Supreme Court Justice. Allow the Senate or both houses of Congress to remove Supreme Court Justices with a 51% vote.

6. Make the US Senate more representative of the American people

My suggestion add one US Senator to each state’s delegation for each five million people in population. This system could give Texas, which has around 30 million people, eight US Senators and California nine US Senators. Hence, we could have the US Senate that reflects the American population.

Abortion Decision Draft

What’s Missing from Alito’s Decision to Revoke the Right to Abortion

In a leaked draft, the Justice points to “history and tradition” but ignores the context of both the past and the present.

By Jessica Winter and published in the New Yorker May 3, 2022

Just in time for Mother’s Day, a draft of the majority decision in Dobbs v. Jackson Women’s Health Organization, the Supreme Court case focussing on the constitutionality of a fifteen-week abortion ban in Mississippi, was leaked to Politico, which published it on Monday night. In the draft, Justice Samuel Alito repeatedly cites the Fourteenth Amendment, which specifies that any right conferred by its due-process clause must be “deeply rooted in this Nation’s history and tradition.” The right to an abortion—which Roe v. Wade and its successor, Planned Parenthood v. Casey, ascribed to the due-process clause—has no such roots, Alito argues. “Until the latter part of the 20th century,” he writes, “there was no support in American law for a constitutional right to obtain an abortion. Zero. None.” Alito is entirely correct that, in 1973, the Supreme Court was somewhat out of step with its time in codifying women’s rights. When Roe was decided, a married woman in the United States needed her husband’s permission to get a credit card, something that did not change until 1974. No state outlawed marital rape until 1975. No man was found liable for sexual harassment until 1977. Pregnancy was a fireable offense until 1978. Alito does not itemize forms of gender-based subjugation that persisted after Roe, many of which might be persuasively argued as “deeply rooted in this Nation’s history and tradition.” But the history of such discrimination offers helpful context for why some conservatives might have seen the legalization of abortion—and the freedom that it conferred on women—as so radical, so potentially destructive to the social order, that they would spend nearly fifty years working toward its reversal.

Other, more recent Supreme Court decisions have rested on the presumption of a right to privacy in the due-process clause—Lawrence v. Texas, for example, which struck down so-called sodomy laws across the country, or Obergefell v. Hodges, which enshrined the right to same-sex marriage. Some conservatives viewed these progressive victories in the same apocalyptic terms as they did Roe, and some progressive activists are legitimately concerned that, if finalized, the decision in Dobbs will open the door to dismantling L.G.B.T.Q. rights. But the draft opinion, which upholds Mississippi’s ban on abortion after fifteen weeks of pregnancy, is careful to specify that reproductive rights are special, even unique. No other issue involves “the critical moral question posed by abortion”—i.e., the rights, the standing, the precise ontology of “fetal life,” “potential life,” or “an unborn human being.” This uncertainty, Alito writes, requires the Court to “return the issue of abortion to the people’s elected representatives.” He adds, “At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process.” (The late Justice Ruth Bader Ginsburg saw Roe in broadly similar terms—as an interruption to a more organic, less contentious advance of reproductive rights—albeit from the other side of the aisle.) Roe intruded on the will of the people, Alito contends. The decision was “exceptionally weak,” an “abuse of judicial authority,” “egregiously wrong from the start,” and one that “short-circuited the democratic process.”


If a majority of the Supreme Court decrees that Roe is, at its core, a subversion of American democracy, then there is some symmetry in the fact that four of the five Justices voting to end it were appointed by men who won the Presidency despite losing the popular vote, that three of them were appointed by a man who was twice impeached, and that one was appointed to an essentially stolen seat. A majority of Americans support abortion rights, but Republican-controlled legislatures in heavily gerrymandered states do not, and it is those lopsided governing bodies that are responsible for Mississippi’s fifteen-week ban, for Texas’s six-week ban, and for bills that would restrict or ban abortions in at least twenty-one other states should Roe be officially overturned. On the national level, gerrymandered districts in the House, conservative overrepresentation in the Senate, and Joe Manchin’s dedication to the filibuster will almost certainly doom any federal action that President Biden may attempt. Minoritarian rule, regardless of its merits, is also deeply rooted in this nation’s history and tradition, and it is grimly easy to foretell what will result from it now: an increase in adverse maternal-health outcomes, especially for poor women and Black and brown women; unjust prosecutions of women who suffer miscarriages; enormous pressure on already overtaxed clinics in states that preserve abortion rights; and more.

To the layperson, at least, the decades-long debate—undertaken by scholars on the left as well as the right—about if or where a right to abortion is found in the Constitution can look like a pedantic fixation. Childbirth can be physically and psychologically debilitating, and so can parenthood, even in the most favorable and desired circumstances; it would not seem to require a law degree to determine that carrying an unwanted pregnancy to term and being forced to give birth is a matter of life and liberty. Abortion rights are only a part of one of the central, most vexing, most consequential questions of our entire judicial system: Who does your body belong to? Who is in possession of you, of your self, at any given moment in your life? Is it you? Is it your parent, is it your spouse or sexual partner, is it a physician, is it a police officer or prison warden, is it a state legislature, is it the God you pray to? Is it Samuel Alito?

Lewis Powell, a moderate Nixon appointee to the Supreme Court, voted with the majority in Roe, following an incident in which a young colleague at his law firm came to him in desperation after his girlfriend bled to death as a result of a botched abortion. (Powell intervened with the local prosecutor on the young man’s behalf, and no charges were filed against him.) Powell was confronted with a body that had been harmed by the law, and he acted accordingly. In the Dobbs decision, Alito nods a bit at women’s lived experiences in a manner at once abstract and upbeat, implying that the need for abortion has diminished since 1973, owing to weakened stigmas against single mothers, prohibitions on pregnancy discrimination, and the fact that parental leave “is guaranteed by law in many cases,” among other reasons. He does not mention that American women have the highest maternal-mortality rates in the industrialized world, that America is the only industrialized nation without mandated paid leave, that sixteen per cent of its children live in poverty, that it spends something like two per cent of what some Scandinavian countries do on day care per toddler. Alito does not quantify what the end of Roe means, nor does he personify it; there are no women here. There is “the womb”—the generic vessel outside of which the fetus cannot survive—but there is no body. For all the suffering and havoc that may result from this decision, it is a bloodless text, on a matter that is all blood.

The Trouble with the Supreme Court

Opinion: The Supreme Court is broken. So is the system that confirms its justices.

Written by Ruth Marcus and published in the Washington Post 4/7/2022

The confirmation process for Supreme Court nominees is broken, and so, I fear, is the Supreme Court itself. These developments, mutually reinforcing, were both on sad display this week.

Not long ago, whether to confirm a Supreme Court nominee was not a predictably party-line affair, with a handful or fewer of defectors. In 2005, Chief Justice John G. Roberts Jr. was confirmed with 78 votes, and Democratic senators split equally on the nomination, 22 in favor and 22 against. That lopsided tally — earlier confirmations were, for the most part, more lopsided — is now a quaint artifact of a less polarized era.

The Senate finds itself now on the verge of a dangerous new reality, in which a Senate controlled by the party opposing the president might simply refuse to confirm a nominee, period. A tradition of deference to presidential prerogatives — of believing that elections have consequences, as Sen. Lindsey O. Graham (R-S.C.) liked to say in one of his earlier incarnations — is over. If the Senate majority is big and unified enough, it will defy the president.

Just wait and see. Republican senators were willing to caricature Ketanji Brown Jackson’s record in search of any excuse to vote against her — even though her addition to the court won’t affect its ideological balance. Imagine what would happen if a Republican appointee were to leave the court during a Democratic presidency. Actually, no imagination needed. Consider what the Senate did — or didn’t do — when Merrick Garland was nominated in 2016 to replace the late Antonin Scalia.

We could endlessly debate how things degenerated to this point: Republicans point to the Bork hearings, the Thomas hearings, the Gorsuch filibuster and the Kavanaugh hearings; Democrats bemoan the Garland blockade and the hurried Barrett confirmation. Neither side has clean hands.

The result is a fiercely partisan process that demeans the Senate and politicizes the court, rendering it a creature of political will and power. At this stage, there is no incentive for either party to back down from this maximalism. Time was (starting with Robert H. Bork), the Senate debated whether a nominee was in or outside the judicial mainstream. That assessment was in the eye of the beholder, of course, but at least it was a nod at deliberation.

That is so 1987. Judicial philosophy is now aligned with political party as never before in the court’s history. So it is no surprise to witness the same phenomenon — the raw exercise of power overtaking normal processes — unfolding on the court itself. Norms are shredded in both branches.

One vivid manifestation involves the conservative majority’s use of the emergency docket — what’s called, in more sinister-sounding terms, the shadow docket.

The court’s work is supposed to be conducted after full written briefing and oral argument and justified by written opinions. It has rules, or is supposed to, about when to intervene to referee disputes before they get to that stage, and, of course, that needs to happen sometimes. But increasingly, the court is using its emergency powers to step into disputes on the side that the majority favors — outside of the normal procedures and without written explanation.

Why? Because it can.

Thus, the week of Jackson’s confirmation saw five conservative justices — over the dissent of three liberals and the chief justice — intervening in a case still pending before a federal appeals court.

Five conservative justices voted to reinstate a Trump-era clean-water rule that restricted states’ ability to block potentially polluting projects. The three remaining liberal justices — joined, notably, by Chief Justice Roberts — dissented, complaining that the court was misusing its emergency powers by reviving the rule without the proof that was necessary to avoid “irreparable harm,” as the court’s precedents require.

“That renders the Court’s emergency docket not for emergencies at all,” wrote Justice Elena Kagan. This might sound mild, but process matters at the Supreme Court, and while Roberts had voted with the liberals before in such cases, this was the first time he had joined a dissent criticizing the misuse of the shadow docket.

Maybe the district court judge in the case made a mistake by going further than the Biden administration had asked in vacating the Trump-era regulation, not simply returning the matter to the Environmental Protection Agency while it worked on a new version of the rule.

That’s not the point. The point is that courts have rules about when to grant emergency relief — and the test isn’t just whether the lower court got it wrong. An appeals court is reviewing the district judge’s decision and, applying those rules, declined to stop it from taking effect. As Kagan explained in her dissent, “This Court may stay a decision under review in a court of appeals ‘only in extraordinary circumstances’ and ‘upon the weightiest considerations.’ ”

No emergency justified the Supreme Court interfering here. It just had the votes to act anyway.

When norms give way to partisanship and ideology, when applying impartial rules yields to obtaining results by any means, institutional legitimacy erodes. The immediate gain is understandably tempting. The institutional damage might not be immediately evident, but it is as undeniable as it will be difficult to repair.