Trump’s Ginsburg Supreme Court Replacement: Bad News for Our Environment?

Dolphin “Fishing,” Tampa Bay, Florida

In the September 21, 2020 Washington Post’s article, An extra Trump Supreme Court justice may help cement his environmental rollbacks, Jody Freeman, director of Harvard Law School’s environmental and energy law program, is quoted as saying:

“A further tilt of the Court in the direction it is already going ― skeptical of regulation, unsympathetic to the idea that agencies should have some room to interpret their statutes broadly to solve new problems, and uninterested in reading statutes with their broader purpose in mind, certainly won’t help the cause of environmental protection.”

The article discusses the EPA’s “Clean Power Plan,” which has been challenged by the Trump Administration as being adopted by the EPA in excess of its authority. The Post’s concern is that if a conservative Supreme Court agrees with Trump, “it could hamstring a future president from using existing law to regulate climate-warming pollution.”

Conservative Justice Neil Gorsuch has been quite vocal that Congress’s delegation of its legislative authority to the executive branch, which runs our nation’s administrative agencies, has exceeded its constitutional authority. He also has been critical of the Supreme Court’s historic, sweeping deference to executive branch administrative agencies making, interpreting and enforcing their own rules – rules that have the force of law. Other conservative justices look as if they agree with Gorsuch.

The liberal justices see any rollback as stifling the executive branch and its administrative agencies from being responsive to issues, like climate change, that our complex society requires flexibility and some speed in solving. They see these sorts of problems best handled by the executive branch of government. In fact, Justice Kagan, the Court’s remaining liberal female member, has written that we live in the Era of Presidential Administration, and the Supreme Court should facilitate that sort of necessary management.

Before I and the rest of us who favor caring for our environment and minimizing our damage from climate change side with Kagan, there are a few constitutional and pragmatic thoughts worth thinking through.

The Constitution our Founders adopted in 1789 provides that the exclusive right to pass legislation belongs to our first political branch of government, the legislative branch. Nothing in the Constitution says that Congress has the right to delegate law-making to our second political branch of government, our executive branch; and it doesn’t give the executive branch authority to set up and operate what has become known as our “Fourth Branch” of government, our administrative agencies. But that’s what we have done. The authority is not in the words of the Constitution, but in its implied meanings.

Today, as many as 30 times as many laws (in the form of agency rules) are passed in a year by the Fourth Branch than are passed by Congress. In fact, not too long ago, I did a blog on this problem, Too Damn Many Regulations? I pointed out that in 2016, while Congress passed 2,966 pages of laws, the administrative agencies pushed out 97,110 pages of regulations. Thus, Gorsuch has a point about Congress’s delegation. The give and take between elected Congressmen with differing views, which is to take place in debates about proposed legislation, is totally missing from the rule-making process.

However, there is another, more serious threat to our Democracy than reams of paper filled with regulations. It’s a combination of the influence of lobbies and what I call legalized corruption. First there is a very cozy relationship between the regulating agencies and the companies they regulate. Money in the form of political contributions does that sort of thing. Lobbies not only have a strong influence on the rules being drafted, they frequently draft the rules.

Worse, there is the “swinging door” between the agencies and the companies being regulated. As we change administrations over time from liberal to conservative and back again, whomever is in charge appoints new political heads of the executive branch agencies, often from regulated businesses. For example, Trump appointed an ex-coal lobbyist to run the Environmental Protection Agency. All administrations do this sort of thing, but Trump, in less than eight years, has appointed more lobbyists and regulated company insiders to work in our agencies than Bush and Obama did in their combined 16 years of running our government. And what usually happens, is that after a short term running our agencies, the lobbyists and insiders return to their private businesses, knowing where pressures can be applied to get the best results for the companies they represent. We, the people, the intended beneficiaries of our Constitution, are in a distant last place. Yes, there are ethics rules that are supposed to minimize this sort of thing. But, believe me, they really don’t work.

Now, not all is lost. Last time I ran a check, Trump and his friends rolled back 102 regulations. However, the rollbacks are being challenged by concerned environmental and other organizations in the federal courts, now populated primarily by conservative judges. What has been Trump’s success ratio? About 12%. He’s lost about 88% of his challenges. You can check Trump’s rollbacks.

Thus, there are judges, liberal and conservative, that do understand that our Constitution is written to provide us with an independent judiciary in a country intended to by run by the rule of law, though our political branches prefer a country run by the rule of dollars.

These tough sorts of issues and subjects is why I wrote Democracy of Dollars, now in its final editing. We need to understand the issues and take intelligent, carefully considered stands. We can’t assume that everyone who thinks different from us is wrong.

On the issue of Congressional over-delegation, I do believe my liberal friends are wrong. We need to get back to Constitutional government, and Congress needs to quit over-delegating to the executive branch, which is too easily corrupted by money.

Democracy of Dollars

What Kind of Justice System Do We Want?

Lincoln Memorial

Today, the second woman appointed as a Supreme Court Justice, Ruth Bater Ginsburg, died. She was a brilliant judge, whose prior legal career championed human rights, particularly women’s rights. “On the basis of sex” is a documentary of her ground-breaking legal work. Her life as a judge on a conservative Supreme Court has been one of documenting strong dissents about human rights the majority of the Court has chosen too frequently to disregard. For all of us, there is a value in strong dissents. Frequently, our experiences open us to their wisdom and they ultimately become the law of the land. A prime example is Brown v. Board of Education, which some seven decades after deciding “separate but equal” facilities for black kids was constitutional, adopted the message of Judge Harlan’s dissent: separate lacks equality. The same result will come to pass from many of Justice Ginsburg’s dissent, but it will take time.

In these contentious times, our Senate is now faced with approving a presidential appointment for her successor. In his final few months in office Obama appointed Merrick Garland, a well-qualified moderate judge to the Supreme Court. Mitch McConnell, the Republican Senate leader, refused to bring the appointment up for consideration by the Senate, arguing that with the election soon at hand, the appointment should be made by the next president. However, now that Justice Ginsburg has died, and Trump is in the last few months of his term of office, McConnell has changed his mind. He’s planning a quick appointment to be sure another conservative judge joins the court, which would shift the balance from 5 to 4 to 6 to 3.

There’s not much you and I can do about the political process of judicial court-stacking, but most polls have indicated that we Americans don’t care for the politicizing of our Court, whose role is provide checks and balances for us over our two political branches of government, the legislative and executive branches. In a September 18, 2020 Times/Siena poll, voters preferred that the next president select Ginsburg’s replacement by a 53% to 41% margin.

There are very important constitutional issues involved in the debate about appointing judges. The first consideration is for us to think about our Constitution and its purpose. Today, we’re engaged in a “winner-take-all” political system, that over the years goes back and forth between conservatives and liberals. When the baton is passed, the successor administration frequently moves fast to undo what his or her predecessor has done, good or bad, and then fills the void with whatever political thought is popular with the winning party. That winner-take-all approach misses the point of the Constitution. Elections are not Super Bowls, with the trophy meant for the winner and the loser be damned and ignored until the next Super Bowl/election.

The Constitution is a document of accommodation of differing points of view. About one-third of us are conservative, about one-third liberal and the rest independent. When a party wins an election and ignores the rest of us, it is essentially ignoring two-thirds of our people. Oliver Wendell Holmes perhaps said it best in 1905 in one of his famous dissents. Holmes opined that our constitution is “made for people of fundamentally differing views.” The Constitution is not a document to assure political domination, conservative or liberal. Political minorities share equally with the winners in the Constitution’s inalienable rights and are, by design, protected from the “tyranny of the majority” James Madison wrote about in Federalist Paper #10. That design, however, assumes that Congress represents all of us as fiduciaries, not merely the winners of a particular election. We have lost sight of that important fiduciary responsibility.

As designed, with the normal turnover of judges through retirement or death, a President typically has an opportunity to appoint one or two judges. With the political movement shifting from time-to-time from conservative to liberal and then back again, appointments that are not manipulated as Mitch McConnell has a penchant for doing, will tend to produce a balanced Supreme Court over time, sometimes being 5 to 4 liberal and other times 5 to 4 conservative. Such a Court is as close as we can come in representing all of the people. The give and take between justices with differing views produces the most wholesome results for us. Why? A court stacked with like-minded judges is prone to “groupthink” decisions, as are boards of directors with “loyal directors” who never question the corporate CEO. Our Constitution has set up checks and balances that, when ignored by the deference of the Court to the political branches, are worthless. Similarly, decisions of likeminded justices who have no reason to think about other points of view don’t represent the people.

In our times, President Kennedy’s Bay of Pigs fiasco and President George Bush’s Middle East Wars are examples of groupthink decisions in the executive branch. Our two greatest Presidents, Lincoln and Washington, avoided groupthink when they appointed their cabinets. They each chose cabinet members with differing points of view. Lincoln actually appointed cabinet members from his political opponents. In a diverse society with today’s complexity, not having those differing points of view to exchange ideas and work out compromises, our Democracy will not work. A Court of like-minded judges are prone to similar mistakes.

Our creator did not create some of us conservatives and some of us liberals and the rest of us independent without a reason. We were meant to talk to each other. Learn from each other. Accommodate ourselves to each other. Compromise with each other. Manipulated winner-take-all politics is not a tool of a healthy Democracy.

As we think about this, let’s consider what Ben Franklin told the members of our Constitutional Conventions in 1787:

“I agree with the Constitution with all its faults… I believe, further, that this is likely to be well administered for a course of years, and can only end in despotism, as other forms have done before it, when the people shall be so corrupted as to need a despotic government, being incapable of any other.”

Today, our government is an oligarchy, run by a few for a few. We are too close to having a full-time despotic government. And we don’t need that!

Not stacking Supreme Court picks will allow the Court to exercise its checks and balances that a politicized Court will never do. That’s a start in returning us to a Democracy. That’s worth your taking a strong stand.