What it’s like to argue before this Supreme Court

The Court has changed the way it approaches its business.

I recently spoke to one of Earthjustice’s appellate lawyers about the U.S. Supreme Court and the challenges of representing our clients before its conservative supermajority. She said something I’m still thinking about.

It’s not so much that the current Court has made it harder for environmentalists, she said. It’s that they’ve made it much, much easier for our opponents.

It’s a subtle point, but one way to understand it is to contrast today’s Supreme Court with the Rehnquist Court, which I got to know while clerking for Justice Sandra Day O’Connor. (Of those Justices, only Justice Thomas remains on the bench now.)

While the Rehnquist Court was conservative on the law, the current Court is flat-out radical. But an equally striking difference is how cautious and slow the Rehnquist Court seems in retrospect. Unlike today’s conservative bloc, it generally did not go out of its way to rule on legal issues unless necessary. It would have been disturbed by this Court’s “shadow docket” of hot-take decisions and cryptic orders.

That was in large part because of my boss. It’s common knowledge that her swing vote often decided tough substantive issues, but she also influenced the way the Court approached its business. And love it or hate it, her approach was one of incrementalism, minimalism, and prudence.

“Judicial prudence” (or “judicial conservativism”) is the idea is that a court (and the Supreme Court in particular) should only get involved in a matter when appropriate, ground its decision in the law and facts of the case before it, and rule narrowly to resolve that particular dispute without trying to do more.

One big reason that Justice O’Connor took this approach is that she was aware of her limitations. She knew she was a cowgirl from Arizona and that her four law clerks were wet behind the ears. She didn’t have an agency’s worth of scientists, economists, or policy analysts to help her predict the impacts and implications of ruling one way or another. So she didn’t welcome “big” cases, and she really didn’t like overruling precedent or announcing new doctrines.

This also meant that the Court paid close attention to threshold issues — like whether it had the authority to hear a case, whether the person suing had a right to be there, and whether the dispute was still live rather than already resolved. It also relied heavily on the facts of individual cases, which tend to narrow the issues and the scope of a ruling.

That was then.

From my perspective, the current conservative supermajority doesn’t just care about changing the law. It wants to make those changes fast, and damn the torpedoes. The six-Justice bloc has repeatedly shown itself willing to disregard questions of justiciability, to decide issues on a sparse — or nonexistent — factual record, and to do as much, not as little, as possible.

Here’s one telling example from the term I clerked for Justice O’Connor. When that Court upheld most of the McCain-Feingold campaign finance reform law, it exhaustively cited and relied on the huge factual record that lower court judges had developed by evaluating the parties’ witnesses and documents.

By contrast, when the Roberts Court reversed key parts of that decision in Citizens United, it did so without any evidence before it. Justice Roberts asked the parties to argue a question that hadn’t even been presented to the lower courts. The Court turned a lawsuit into an excuse for making policy.

More recently, in West Virginia v. EPA, the Court manufactured a constitutional “controversy” out of a climate regulation that was dead and buried: President Obama’s Clean Power Plan. A 2016 Court decision had blocked the rule from taking effect, but market forces had done its work; by the time Joe Biden took office, the rule was obsolete. He said he wouldn’t enforce it. That didn’t stop the conservative supermajority from hearing a challenge to it anyway.

Why? Because it wanted to fire a shot across EPA’s bow to chill new climate regulation, and it saw a convenient opportunity to announce a transformative new principle of administrative law — the “major questions doctrine,” which we’ve written about elsewhere.

If you are a corporation who benefits from this deregulatory approach, the Court’s freewheeling approach to deciding cases makes your life easy. Why waste time developing facts if the Court doesn’t need them? Why prove that you’ve been harmed if you can just hypothesize that someone might be?

And why not swing for the fences? Don’t just challenge an agency’s scientific or economic rationale for a regulation, or its reading of the underlying law; instead, propose a new way of reading old laws. Or new constitutional rules to make settled laws invalid. And ask the Court to block regulations right out of the gates, so you can do business as usual while your challenge proceeds through the courts. (This also lets you continue insisting that the regulations would ruin you, rather than adapting and innovating, as you have done in the past.)

This is what my colleague meant when she said the other side has it easy these days.

Litigants defending regulatory action have the opposite problem; we have to respond to all these arguments and prepare for novel arguments that the Court might itself raise. We have to follow the latest conservative legal discussions, because fringe legal theories can go mainstream very quickly. We have to master the factual record and prepare for it to be irrelevant. And, of course, we can’t trust in precedent when the Court is willing to overrule, narrow, or hollow out foundational doctrines.

The Court’s anything-goes approach also further encourages the Trump administration to ignore settled law. If everything is up for grabs, why not reach for all you can? If precedent doesn’t matter, why not do unprecedented things? In my view, the Supreme Court has yet to deliver a real rebuke—clear, forceful, unanimous—that would discourage further brinksmanship.

Environmentalists have been dealing with a conservative Supreme Court since the ‘70s, so uphill battles aren’t new for us. But I worry about the Roberts Court’s turn away from institutional humility. If you’re reading this post, you probably share my views that this Court is increasingly not acting like one — and in the process, squandering the institutional legitimacy that it built over decades. Our view is becoming more common: The Court’s public standing is at an all-time low.

The Court I clerked in was far from perfect and definitely not free of ideology. But it paid attention to its role and its limits, and the Justices shared a respect for the craft of judging — and for the Justices who had come before them.

I’m not sure how much of that holds anymore. And that’s a loss for all of us.