Thursday Reads: SCOTUS News

Good Morning!!

I feel emotionally wrung out this morning. We are living through important events that will reverberate down through history, and we still don’t know which side will control how future generations see these events. Will we succeed in rescuing U.S. democracy, or will the forces of fascism win in the end? Will we survive the stunning series of decisions the reactionary Supreme Court has inflicted on us in the past couple of weeks? With the societal divisions being sown by the GOP and the Court lead to a new civil war? Today I’m going to focus on the latest decisions from the Trumpist SCOTUS decisions.

Nina Totenberg at NPR: Supreme Court restricts the EPA’s authority to mandate carbon emissions reductions.

The U.S. Supreme Court on Thursday dealt a major blow to the Environmental Protection Agency’s power to regulate carbon emissions that cause climate change. The decision by the conservative court majority sets the stage for further limitations on the regulatory power of other agencies as well.

By a vote of 6 to 3, the court said that any time an agency does something big and new – in this case addressing climate change – the regulation is presumptively invalid, unless Congress has specifically authorized regulating in this sphere.

At issue in the case were rules adopted by the Trump and Obama administrations and aimed at addressing the country’s single-largest carbon emissions problem – from coal-fired power plants. The Obama plan was broad, the Trump plan narrow. The Obama plan didn’t regulate only coal-fired plants. Instead, it set strict carbon limits for each state and encouraged the states to meet those limits by relying less on coal-fired power plants and more on alternative sources of energy – wind, solar, hydro-electric and natural gas. The goal of the plan was to produce enough electricity to satisfy U.S. demand in a way that lowered greenhouse emissions.

The concept worked so well that even after Obama’s Clean Power Plan was temporarily blocked by the Supreme Court and then repealed by the Trump administration, most utilities continued to abandon coal because it was just too expensive, compared to other energy producing methods. In fact, even without the regulation in place, the reduction targets for carbon emissions were met 11 years ahead of schedule.

Fearing the Obama approach might someday be revived, the coal industry, joined by West Virginia and 16 other states, went to court in support of the Trump plan and its more restrictive interpretation of the Clean Air Act. A federal appeals court in Washington, D.C., ruled against them in 2021.

But on Thursday, the Supreme Court sided with the coal industry, ruling that the Clean Air Act does not authorize anything other than direct regulation of coal-fired plants….

The decision appears to enact major new limits on agency regulations across the economy, limits of a kind not imposed by the court for 75 years or more. The decision, for instance, casts a cloud of doubt over a proposed Securities and Exchange Commission rule that would require companies offering securities to the public to disclose climate-related risks – like severe weather events that have or likely will affect their business models. Also in jeopardy is a new interim rule adopted by the Federal Energy Regulatory Commission “aimed at treating greenhouse gas emissions and their contribution to climate change the same as all other environmental impacts [the Commission] considers.”

The Supreme Court deigned to give Biden one win, on immigration. The Washington Post: Supreme Court clears Biden to end Trump’s ‘Remain in Mexico’ policy.

The Supreme Court on Thursday ruled for the Biden administration on a controversial immigration policy, saying it had the authority to reverse a Trump-era policy that requires asylum seekers to remain in Mexico while their cases are reviewed in U.S. courts.

The vote was 5 to 4, with Chief Justice John G. Roberts Jr. writing for himself and Justice Brett M. Kavanaugh, and the court’s three liberals, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

Roberts said federal immigration law gives the executive discretion: He may return asylum seekers to Mexico, but is not required to do so.

Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Amy Coney Barrett dissented.

Barrett said that she agreed with the majority on the merits of the decision but that the court should not have decided the case and should have remanded it to lower courts.

Alito, writing for himself, Thomas and Gorsuch, said the Department of Homeland Security should not be free to “simply release into this country untold numbers of aliens who are very likely to be removed if they show up for their removal hearings. This practice violates the clear terms of the law, but the Court looks the other way.”

From NPR, another bit of good SCOTUS news: Ketanji Brown Jackson to be sworn in as first Black woman on the Supreme Court.

Ketanji Brown Jackson will be sworn in Thursday at noon as the 116th Supreme Court justice and the first Black woman to serve on the high court.

Biden nominated Jackson in February, fulfilling a campaign promise to nominate the first Black woman to the Supreme Court.

“It has taken 232 years and 115 prior appointments for a Black woman to be selected to serve on the Supreme Court of the United States, but we’ve made it! We’ve made it — all of us,” Jackson said in remarks at a White House event the day after the Senate vote.

“I have dedicated my career to public service because I love this country and our Constitution and the rights that make us free,” Jackson also said.

Jackson, 51, has been confirmed since April, when the Senate voted 53 to 47 on her nomination. It was expected she would replace 83-year-old Justice Stephen Breyer — whom she clerked for after shed graduated from Harvard Law School in 1996 — when he stepped down. His retirement will be effective Thursday.

Jackson will take two oaths during the livestreamed event: a constitutional oath, administered by Chief Justice John Roberts, and a judicial oath, administered by Breyer.

Biden and Congressional Democrats are still struggling to deal with the Court’s decision to take away American women’s control over their own bodies and turn women in their childbearing years into broodmares.

The Washington Post: Democrats call on Biden to declare abortion national health emergency.

Lawmakers and advocates are pushing President Biden to declare a national health emergency to increase financial resources and flexibility in states that continue to allow abortion access following the Supreme Court’s decision to overturn Roe v. Wade.

The Congressional Black Caucus made the initial request the morning of the court’s ruling, and the House Pro-Choice Caucus is privately urging the administration to act swiftly. 

“The fundamental right to control your body and future has been ripped away from American women,” Assistant Speaker of the HouseRep. Katherine M. Clark (D-Mass.) told The Early. “Declaring an emergency is an immediate step to help patients access the care they need.”

Supporters say time is critical because the remaining abortion clinics are seeing a massive increase in demand that is going to be difficult to meet.

“They are doing everything they can,” Sen. Tina Smith (D-Minn.) said of an abortion clinic treating women in the northern parts of Minnesota, Wisconsin and Michigan. “But they are severely resource constrained in terms of the providers that they have, in terms of the physical facilities that they have, in terms of the financial resources they need to try to expand access to care, which they desperately want to do.” 

“This would be another way for the full legal authority of the federal government to be brought into play as we try to protect women’s health,” Smith said in an interview on Washington Post Live this week. 

Another suggestion is to change the filibuster rules for abortion laws. The Washington Post: Biden endorses scrapping Senate filibuster to codify abortion, privacy rights.

Politico: Biden says he supports a filibuster carveout to restore abortion rights.

“I believe we have to codify Roe v. Wade in the law and the way to do that is to make sure that Congress votes to do that, and if the filibuster gets in the way, it’s like voting rights, it should be ‘we provide an exception for this’ — require an exception to the filibuster for this action to deal with the Supreme Court decision,” Biden said during a press conference at the NATO summit.

Biden’s comments come on the heels of the consequential Supreme Court decision last Friday to overturn the landmark 1973 decision and deny a constitutional right to abortion. The president has previously been opposed to getting rid of the filibuster — which establishes a 60-vote threshold to move most bills through the Senate — but said Thursday he would do “everything in my power” to protect the right to choose .

The president added he’d be in favor of changing filibuster rules to not only guarantee abortion rights but also a constitutional right to privacy — which he said the Supreme Court “wiped” out with its decision on Roe. He said codifying privacy rights would protect access to abortion as well as a “whole range of issues,” including same-sex marriage….

Biden’s support for ending the filibuster is his most concrete call for legislative action yet on preserving abortion rights. With the filibuster as it stands, Democrats almost certainly lack the 60 votes they would need to codify Roe in a 50-50 Senate.

So far, Joe Manchin and Kyrsten Sinema haven’t agreed to go along with this strategy.