It's time to pack the court

‘The planet’s future hangs in the balance.’ Photograph: Stefani Reynolds/AFP/Getty Images

The Roberts' Court, the worst in history, is now contemplating gutting the EPA in order to not only meet the "needs" of fossil fuel producers but also, in effect, to dictate how government agencies should do their job in meeting the needs of the public.

Granting a petition by several states and coal companies, the supreme court on 28 February will address what appears to be a technical legal question: does the Environmental Protection Agency have authority to calculate CO2 emissions targets for power plants based on mitigation techniques involving steps “beyond the fence-line” of individual plants? In truth, the matter the court is considering implicates –and imperils – the federal government’s power to fashion flexible solutions not only to global warming but to all manner of complex problems.

The stakes are higher still: by ruling on the case at all, the court usurps power constitutionally entrusted to government’s politically accountable branches. Article 3 of the constitution limits federal courts to deciding concrete “cases and controversies” about the rights of individual parties. Yet this “case” involves neither a concrete dispute nor the specific rights of any of the challengers. Instead, it’s akin to an exam question about the options theoretically available to a federal agency to address a grave problem. In answering that hypothetical question, the court will have arrogated to itself an unprecedented, open-ended power to reshape the nation’s social and economic landscape – far in excess of its legitimate authority, as the foundational case Marbury v. Madison put it, to “declare what the law is”.

The court has avoided such a wide-ranging role ever since our founding, when Chief Justice Jay refused President George Washington’s 1793 request for legal advice about America’s obligations under treaties with France and Britain, concluding that issuing such an “advisory opinion” to guide the nation’s foreign policy would exceed the court’s constitutionally assigned power. The underlying axiom is neither liberal nor conservative but universal. As Justice Brett Kavanaugh wrote for the court just last term, “federal courts decide only ‘the rights of individuals’ [and] do not possess a roving commission to publicly opine on every legal question.”

The role the court is poised to play in West Virginia v. EPA is more breathtaking still. It stands ready not just to “publicly opine” on a broad legal question but to bind the entire federal government to its answer, restricting the range of policies the EPA –under President Joe Biden and future presidents – can even consider to reduce carbon dioxide emissions and tackle climate change.

Issuing any such “super advisory opinion” would seize the power to set regulatory policy itself – a perversion of separation of powers unthinkable just a few years ago. Yet, as its recent onrush of breaks with precedent, procedure and prudence to achieve the ultra-conservative majority’s policy preferences on abortion, public health and voting rights demonstrate, today’s court flouts all institutional bounds. As it charges ahead, what remains of the court’s legitimacy, the constitution’s allocation of decision-making authority, and the planet’s future all hang in the balance. - Lawrence H. Tribe & Jeremy Lewin

It's time to pack the court.