A. The Constitution protects the right to “life, liberty, and property, to free speech, a free press, [and] freedom of worship and assembly.” W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).
Through “reasoned judgment,” the Supreme Court has recognized that the Due Process Clause, enshrined in the Fifth and Fourteenth Amendments, also safeguards certain “interests of the person so fundamental that the [government] must accord them its respect.” Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015).
These include the right to marry, Loving v. Virginia, 388 U.S. 1, 12 (1967), to maintain a family and rear children, M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996), and to pursue an occupation of one’s choosing, Schware v. Bd. of Bar Exam., 353 U.S. 232, 238–39 (1957).
As fundamental rights, these “may not be submitted to vote; they depend on the outcome of no elections.” Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 736 (1964) (quoting Barnette, 319 U.S. at 638).
Some rights serve as the necessary predicate for others; their fundamentality therefore derives, at least in part, from the necessity to preserve other fundamental constitutional protections. Cf., e.g., Timbs v. Indiana, 139 S. Ct. 682, 689 (2019) (deeming a right fundamental because its deprivation would “undermine other constitutional liberties”).
For example, the right to vote “is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Reynolds v. Sims, 377 U.S. 533, 555 (1964).
Because it is “preservative of all rights,” the Supreme Court has long regarded suffrage “as a fundamental political right.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).
This holds true even though the right to vote receives imperfect express protection in the Constitution itself: While several amendments proscribe the denial or abridgement of suffrage based on certain characteristics, the Constitution does not guarantee the right to vote ab initio. See U.S. Const. amends. XV, XIX, XXIV, XXVI; cf. U.S. Const. art. I, § 4, cl. 1.
Much like the right to vote, the perpetuity of the Republic occupies a central role in our constitutional structure as a “guardian of all other rights,” Plyler v. Doe, 457 U.S. 202, 217 n.15 (1982).
“Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society . . . .” Cox v. New Hampshire, 312 U.S. 569, 574 (1941); see also The Ku Klux Cases, 110 U.S. 651, 657–68 (1884).
And, of course, in our system, that organized society consists of the Union.
Without it, all the liberties protected by the Constitution to live the good life are meaningless.
This observation is hardly novel.
After securing independence, George Washington recognized that “the destiny of unborn millions” rested on the fate of the new Nation, cautioning that “whatever measures have a tendency to dissolve the Union, or contribute to violate or lessen the Sovereign Authority, ought to be considered as hostile to the Liberty and Independency of America[.]” President George Washington, Circular Letter of Farewell to the Army (June 8, 1783).
Without the Republic’s preservation, Washington warned, “there is a natural and necessary progression, from the extreme of anarchy to the extreme of Tyranny; and that arbitrary power is most easily established on the ruins of Liberty abused to licentiousness.” Id.
When the Articles of the Confederation proved ill-fitting to the task of safeguarding the Union, the framers formed the Constitutional Convention with “the great object” of “preserv[ing] and perpetuat[ing]” the Union, for they believed that “the prosperity of America depended on its Union.” The Federalist No. 2, at 19 (John Jay) (E. H. Scott ed., 1898); see also Letter from James Madison to Thomas Jefferson (Oct. 24, 1787)4 (“It appeared to be the sincere and unanimous wish of the Convention to cherish and preserve the Union of the States.”).
In pressing New York to ratify the Constitution, Alexander Hamilton spoke of the gravity of the occasion: “The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the Union, the safety and welfare of the parts of which it is composed — the fate of an empire, in many respects the most interesting in the world.” The Federalist No. 1, at 11 (Alexander Hamilton) (E. H. Scott ed., 1898).
In light of this animating principle, it is fitting that the Preamble declares that the Constitution is intended to secure “the Blessings of Liberty” not just for one generation, but for all future generations — our “Posterity.”
The Constitution’s structure reflects this perpetuity principle. See Alden v. Maine, 527 U.S. 706, 713 (1999) (examining how “(v)arious textual provisions of the Constitution assume” a structural principle).
In taking the Presidential Oath, the Executive must vow to “preserve, protect and defend the Constitution of the United States,” U.S. Const. art. II, § 1, cl. 8, and the Take Care Clause obliges the President to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3.
Likewise, though generally not separately enforceable, Article IV, Section 4 provides that the “United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and . . . against domestic Violence.” U.S. Const. art. IV, § 4; see also New York v. United States, 505 U.S. 144, 184–85 (1992).
Less than a century after the country’s founding, the perpetuity principle undergirding the Constitution met its greatest challenge.
Faced with the South’s secession, President Lincoln reaffirmed that the Constitution did not countenance its own destruction.
“(T)he Union of these States is perpetual[,]” he reasoned in his First Inaugural Address, because “(p)erpetuity is implied, if not expressed, in the fundamental law of all national governments."
"It is safe to assert that no government proper ever had a provision in its organic law for its own termination.” President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861).
In justifying this constitutional principle, Lincoln drew from history, observing that “(t)he Union is much older than the Constitution.” Id.
He reminded his fellow citizens, “one of the declared objects for ordaining and establishing the Constitution was ‘to form a more perfect Union.’” Id. (emphasis added) (quoting U.S. Const. pmbl.).
While secession manifested the existential threat most apparently contemplated by the Founders — political dissolution of the Union — the underlying principle applies equally to its physical destruction.
This perpetuity principle does not amount to “a right to live in a contaminant-free, healthy environment.” Guertin v. Michigan, 912 F.3d 907, 922 (6th Cir. 2019).
To be sure, the stakes can be quite high in environmental disputes, as pollution causes tens of thousands of premature deaths each year, not to mention disability and diminished quality of life.
Many abhor living in a polluted environment, and some pay with their lives.
But mine-run environmental concerns “involve a host of policy choices that must be made by . . . elected representatives, rather than by federal judges interpreting the basic charter of government[.]” Collins v. City of Harker Heights, 503 U.S. 115, 129 (1992).
The perpetuity principle is not an environmental right at all, and it does not task the courts with determining the optimal level of environmental regulation; rather, it prohibits only the willful dissolution of the Republic.
4 Available at https://founders.archives.gov/documents/Jefferson/0 1-12-02-0274.
5 See, e.g., Andrew L. Goodkind et al., Fine-Scale Damage Estimates of Particulate Matter Air Pollution Reveal Opportunities for Location-Specific Mitigation of Emissions, in 116 Proceedings of the National Academy of Sciences 8775, 8779 (2019) (estimating that fine particulate matter caused 107,000 premature deaths in 2011).
6 Unwilling to acknowledge that the very nature of the climate crisis places this case in a category of one, the government argues that “the Constitution does not provide judicial remedies for every social and economic ill.” For support, the government cites Lindsey v. Normet, 405 U.S. 56, 74 (1972), which held Oregon’s wrongful detainer statute governing landlord/tenant disputes constitutional. The perpetuity principle, however, cabins the right and avoids any slippery slope. While the principle’s goal is to preserve the most fundamental individual rights to life, liberty, and property, it is not triggered absent an existential threat to the country arising from a “point of no return” that is, at least in part, of the government’s own making.
TO BE CONTINUED ...
JULIANA APPEAL
Re: JULIANA APPEAL
That the principle is structural and implicit in our constitutional system does not render it any less enforceable.
To the contrary, our Supreme Court has recognized that “(t)here are many [] constitutional doctrines that are not spelled out in the Constitution” but are nonetheless enforceable as “historically rooted principle(s) embedded in the text and structure of the Constitution.” Franchise Tax Bd. of California v. Hyatt, 139 S. Ct. 1485, 1498–99 (2019).
For instance, the Constitution does not in express terms provide for judicial review, Marbury v. Madison, 5 U.S. 137, 176–77 (1803); sovereign immunity (outside of the Eleventh Amendment’s explicit restriction), Alden, 527 U.S. at 735– 36; the anticommandeering doctrine, Murphy v. NCAA, 138 S. Ct. 1461, 1477 (2018); or the regimented tiers of scrutiny applicable to many constitutional rights, see, e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641–42 (1994).
Yet these doctrines, as well as many other implicit principles, have become firmly entrenched in our constitutional landscape.
And, in an otherwise justiciable case, a private litigant may seek to vindicate such structural principles, for they “protect the individual as well” as the Nation. See Bond v. United States, 564 U.S. 211, 222, 225–26 (2011); INS. v. Chadha, 462 U.S. 919, 935–36 (1983).
In Hyatt, for instance, the Supreme Court held that a state could not be sued in another state’s courts without its consent.
Although nothing in the text of the Constitution expressly forbids such suits, the Court concluded that they contravened “the ‘implicit ordering of relationships within the federal system necessary to make the Constitution a workable governing charter and to give each provision within that document the full effect intended by the Framers.’” Hyatt, 139 S. Ct. at 1492 (quoting Nevada v. Hall, 440 U.S. 410, 433 (1979) (Rehnquist, J., dissenting)).
So too here.
Nor can the perpetuity principle be rejected simply because the Court has not yet had occasion to enforce it as a limitation on government conduct.
Only over time, as the Nation confronts new challenges, are constitutional principles tested.
For instance, courts did not recognize the anticommandeering doctrine until the 1970s because “(f)ederal commandeering of state governments [was] such a novel phenomenon.” Printz v. United States, 521 U.S. 898, 925 (1997).
And the Court did not recognize that cell-site data fell within the Fourth Amendment until 2018.
In so holding, the Court rejected “a ‘mechanical interpretation’ of the Fourth Amendment” because “technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes[.]” Carpenter v. United States, 138 S. Ct. 2206, 2214 (2018).
Thus, it should come as no surprise that the Constitution’s commitment to perpetuity only now faces judicial scrutiny, for never before has the United States confronted an existential threat that has not only gone unremedied but is actively backed by the government.
The mere fact that we have alternative means to enforce a principle, such as voting, does not diminish its constitutional stature.
Americans can vindicate federalism, separation of powers, equal protection, and voting rights through the ballot box as well, but that does not mean these constitutional guarantees are not independently enforceable.
TO BE CONTINUED …
To the contrary, our Supreme Court has recognized that “(t)here are many [] constitutional doctrines that are not spelled out in the Constitution” but are nonetheless enforceable as “historically rooted principle(s) embedded in the text and structure of the Constitution.” Franchise Tax Bd. of California v. Hyatt, 139 S. Ct. 1485, 1498–99 (2019).
For instance, the Constitution does not in express terms provide for judicial review, Marbury v. Madison, 5 U.S. 137, 176–77 (1803); sovereign immunity (outside of the Eleventh Amendment’s explicit restriction), Alden, 527 U.S. at 735– 36; the anticommandeering doctrine, Murphy v. NCAA, 138 S. Ct. 1461, 1477 (2018); or the regimented tiers of scrutiny applicable to many constitutional rights, see, e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641–42 (1994).
Yet these doctrines, as well as many other implicit principles, have become firmly entrenched in our constitutional landscape.
And, in an otherwise justiciable case, a private litigant may seek to vindicate such structural principles, for they “protect the individual as well” as the Nation. See Bond v. United States, 564 U.S. 211, 222, 225–26 (2011); INS. v. Chadha, 462 U.S. 919, 935–36 (1983).
In Hyatt, for instance, the Supreme Court held that a state could not be sued in another state’s courts without its consent.
Although nothing in the text of the Constitution expressly forbids such suits, the Court concluded that they contravened “the ‘implicit ordering of relationships within the federal system necessary to make the Constitution a workable governing charter and to give each provision within that document the full effect intended by the Framers.’” Hyatt, 139 S. Ct. at 1492 (quoting Nevada v. Hall, 440 U.S. 410, 433 (1979) (Rehnquist, J., dissenting)).
So too here.
Nor can the perpetuity principle be rejected simply because the Court has not yet had occasion to enforce it as a limitation on government conduct.
Only over time, as the Nation confronts new challenges, are constitutional principles tested.
For instance, courts did not recognize the anticommandeering doctrine until the 1970s because “(f)ederal commandeering of state governments [was] such a novel phenomenon.” Printz v. United States, 521 U.S. 898, 925 (1997).
And the Court did not recognize that cell-site data fell within the Fourth Amendment until 2018.
In so holding, the Court rejected “a ‘mechanical interpretation’ of the Fourth Amendment” because “technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes[.]” Carpenter v. United States, 138 S. Ct. 2206, 2214 (2018).
Thus, it should come as no surprise that the Constitution’s commitment to perpetuity only now faces judicial scrutiny, for never before has the United States confronted an existential threat that has not only gone unremedied but is actively backed by the government.
The mere fact that we have alternative means to enforce a principle, such as voting, does not diminish its constitutional stature.
Americans can vindicate federalism, separation of powers, equal protection, and voting rights through the ballot box as well, but that does not mean these constitutional guarantees are not independently enforceable.
TO BE CONTINUED …
Re: JULIANA APPEAL
By its very nature, the Constitution “withdraw(s) certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” Barnette, 319 U.S. at 638.
When fundamental rights are at stake, individuals “need not await legislative action.” Obergefell, 135 S. Ct. at 2605.
Indeed, in this sui generis circumstance, waiting is not an option.
Those alive today are at perhaps the singular point in history where society (1) is scientifically aware of the impending climate crisis, and (2) can avoid the point of no return.
And while democracy affords citizens the right “to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times[,]” id. (quoting Schuette v. Coalition to Defend Affirmative Action, 572 U.S. 291, 312 (2014)), that process cannot override the laws of nature.
Or, more colloquially, we can’t shut the stable door after the horse has bolted.
As the last fifty years have made clear, telling plaintiffs that they must vindicate their right to a habitable United States through the political branches will rightfully be perceived as telling them they have no recourse.
The political branches must often realize constitutional principles, but in a justiciable case or controversy, courts serve as the ultimate backstop.
To this issue, I turn next.
B. Of course, “it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution.” Lewis v. Casey, 518 U.S. 343, 349 (1996).
So federal courts are not free to address every grievance.
“Whether a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy is what has traditionally been referred to as the question of standing to sue.” Sierra Club v. Morton, 405 U.S. 727, 731–32 (1972).
Standing is “a doctrine rooted in the traditional understanding of a case or controversy,” developed to “ensure that federal courts do not exceed their authority as it has been traditionally understood.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
A case is fit for judicial determination only if the plaintiff has: “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992); then citing Friends of the Earth, Inc. v. Laidlaw Envtl. Serv. (TOC), Inc., 528 U.S. 167, 180–81 (2000)).
As to the first two elements, my colleagues and I agree: Plaintiffs present adequate evidence at this pre-trial stage to show particularized, concrete injuries to legally-protected interests, and they present further evidence to raise genuine disputes as to whether those injuries — at least in substantial part — are fairly traceable to the government’s conduct at issue. See Maj. Op. at 18–21.
Because I find that plaintiffs have also established the third prong for standing, redressability, I conclude that plaintiffs’ legal stake in this action suffices to invoke the adjudicative powers of the federal bench.
TO BE CONTINUED ...
When fundamental rights are at stake, individuals “need not await legislative action.” Obergefell, 135 S. Ct. at 2605.
Indeed, in this sui generis circumstance, waiting is not an option.
Those alive today are at perhaps the singular point in history where society (1) is scientifically aware of the impending climate crisis, and (2) can avoid the point of no return.
And while democracy affords citizens the right “to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times[,]” id. (quoting Schuette v. Coalition to Defend Affirmative Action, 572 U.S. 291, 312 (2014)), that process cannot override the laws of nature.
Or, more colloquially, we can’t shut the stable door after the horse has bolted.
As the last fifty years have made clear, telling plaintiffs that they must vindicate their right to a habitable United States through the political branches will rightfully be perceived as telling them they have no recourse.
The political branches must often realize constitutional principles, but in a justiciable case or controversy, courts serve as the ultimate backstop.
To this issue, I turn next.
B. Of course, “it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution.” Lewis v. Casey, 518 U.S. 343, 349 (1996).
So federal courts are not free to address every grievance.
“Whether a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy is what has traditionally been referred to as the question of standing to sue.” Sierra Club v. Morton, 405 U.S. 727, 731–32 (1972).
Standing is “a doctrine rooted in the traditional understanding of a case or controversy,” developed to “ensure that federal courts do not exceed their authority as it has been traditionally understood.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
A case is fit for judicial determination only if the plaintiff has: “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992); then citing Friends of the Earth, Inc. v. Laidlaw Envtl. Serv. (TOC), Inc., 528 U.S. 167, 180–81 (2000)).
As to the first two elements, my colleagues and I agree: Plaintiffs present adequate evidence at this pre-trial stage to show particularized, concrete injuries to legally-protected interests, and they present further evidence to raise genuine disputes as to whether those injuries — at least in substantial part — are fairly traceable to the government’s conduct at issue. See Maj. Op. at 18–21.
Because I find that plaintiffs have also established the third prong for standing, redressability, I conclude that plaintiffs’ legal stake in this action suffices to invoke the adjudicative powers of the federal bench.
TO BE CONTINUED ...
Re: JULIANA APPEAL
1. “Redressability” concerns whether a federal court is capable of vindicating a plaintiff’s legal rights.
I agree with the majority that our ability to provide redress is animated by two inquiries, one of efficacy and one of power. Maj. Op. at 21 (citing M.S. v. Brown, 902 F.3d 1076, 1083 (9th Cir. 2018)).
First, as a causal matter, is a court order likely to actually remediate the plaintiffs’ injury?
If so, does the judiciary have the constitutional authority to levy such an order? Id.
Addressing the first question, my colleagues are skeptical that curtailing the government’s facilitation of fossil-fuel extraction and combustion will ameliorate the plaintiffs’ harms. See Maj. Op. at 22–25.
I am not, as the nature of the injury at stake informs the effectiveness of the remedy. See Warth, 422 U.S. at 500.
As described above, the right at issue is not to be entirely free from any climate change.
Rather, plaintiffs have a constitutional right to be free from irreversible and catastrophic climate change.
Plaintiffs have begun to feel certain concrete manifestations of this violation, ripening their case for litigation, but such prefatory harms are just the first barbs of an ongoing injury flowing from an ongoing violation of plaintiffs’ rights.
The bulk of the injury is yet to come.
Therefore, practical redressability is not measured by our ability to stop climate change in its tracks and immediately undo the injuries that plaintiffs suffer today — an admittedly tall order; it is instead measured by our ability to curb by some meaningful degree what the record shows to be an otherwise inevitable march to the point of no return.
Hence, the injury at issue is not climate change writ large; it is climate change beyond the threshold point of no return.
As we approach that threshold, the significance of every emissions reduction is magnified.
The majority portrays any relief we can offer as just a drop in the bucket. See Maj. Op. at 22–25.
In a previous generation, perhaps that characterization would carry the day and we would hold ourselves impotent to address plaintiffs’ injuries.
But we are perilously close to an overflowing bucket.
These final drops matter.
A lot.
Properly framed, a court order — even one that merely postpones the day when remedial measures become insufficiently effective — would likely have a real impact on preventing the impending cataclysm.
Accordingly, I conclude that the court could do something to help the plaintiffs before us.
And “something” is all that standing requires.
In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court explicitly held that a non-negligible reduction in emissions — there, by regulating vehicles emissions — satisfied the redressability requirement of Article III standing: While it may be true that regulating motor-vehicle emissions will not by itself reverse global warming, it by no means follows that we lack jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it.
Because of the enormity of the potential consequences associated with manmade climate change, the fact that the effectiveness of a remedy might be delayed during the (relatively short) time it takes for a new motor-vehicle fleet to replace an older one is essentially irrelevant.
Nor is it dispositive that developing countries such as China and India are poised to increase greenhouse gas emissions substantially over the next century: A reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere. . . . .
. . . The risk of catastrophic harm, though remote, is nevertheless real. Id. at 525–26 (internal citation omitted).
In other words, under Article III, a perceptible reduction in the advance of climate change is sufficient to redress a plaintiff’s climate change-induced harms.
Full stop.
The majority dismisses this precedent because Massachusetts v. EPA involved a procedural harm, whereas plaintiffs here assert a purely substantive right. Maj. Op. at 24.
But this difference in posture does not affect the outcome.
While the redressability requirement is relaxed in the procedural context, that does not mean (1) we must engage in a similarly relaxed analysis whenever we invoke Massachusetts v. EPA or (2) we cannot rely on Massachusetts v. EPA’s substantive examination of the relationship between government action and the course of climate change.
Accordingly, here, we do not consider the likelihood that plaintiffs will prevail in any newly-awarded agency procedure, nor whether granting access to that procedure will redress plaintiffs’ injury. Cf. Massachusetts v. EPA, 549 U.S. at 517–18; Lujan, 504 U.S. at 572 n.7.
Rather, we assume plaintiffs will prevail — removing the procedural link from the causal chain — and we resume our traditional analysis to determine whether the desired outcome would in fact redress plaintiffs’ harms.
7 The presence of a procedural right is more critical when determining whether the first and second elements of standing are present. This is especially true where Congress has “define(d) injuries and articulate(d) chains of causation that will give rise to a case or controversy where none existed before” by conferring procedural rights that give certain persons a “stake” in an injury that is otherwise not their own. Spokeo, 136 S. Ct. at 1549 (quoting Lujan, 504 U.S. at 580 (Kennedy, J., concurring)). But who seeks to vindicate an injury is irrelevant to the question of whether a court has the tools to relieve that injury.
TO BE CONTINUED ...
I agree with the majority that our ability to provide redress is animated by two inquiries, one of efficacy and one of power. Maj. Op. at 21 (citing M.S. v. Brown, 902 F.3d 1076, 1083 (9th Cir. 2018)).
First, as a causal matter, is a court order likely to actually remediate the plaintiffs’ injury?
If so, does the judiciary have the constitutional authority to levy such an order? Id.
Addressing the first question, my colleagues are skeptical that curtailing the government’s facilitation of fossil-fuel extraction and combustion will ameliorate the plaintiffs’ harms. See Maj. Op. at 22–25.
I am not, as the nature of the injury at stake informs the effectiveness of the remedy. See Warth, 422 U.S. at 500.
As described above, the right at issue is not to be entirely free from any climate change.
Rather, plaintiffs have a constitutional right to be free from irreversible and catastrophic climate change.
Plaintiffs have begun to feel certain concrete manifestations of this violation, ripening their case for litigation, but such prefatory harms are just the first barbs of an ongoing injury flowing from an ongoing violation of plaintiffs’ rights.
The bulk of the injury is yet to come.
Therefore, practical redressability is not measured by our ability to stop climate change in its tracks and immediately undo the injuries that plaintiffs suffer today — an admittedly tall order; it is instead measured by our ability to curb by some meaningful degree what the record shows to be an otherwise inevitable march to the point of no return.
Hence, the injury at issue is not climate change writ large; it is climate change beyond the threshold point of no return.
As we approach that threshold, the significance of every emissions reduction is magnified.
The majority portrays any relief we can offer as just a drop in the bucket. See Maj. Op. at 22–25.
In a previous generation, perhaps that characterization would carry the day and we would hold ourselves impotent to address plaintiffs’ injuries.
But we are perilously close to an overflowing bucket.
These final drops matter.
A lot.
Properly framed, a court order — even one that merely postpones the day when remedial measures become insufficiently effective — would likely have a real impact on preventing the impending cataclysm.
Accordingly, I conclude that the court could do something to help the plaintiffs before us.
And “something” is all that standing requires.
In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court explicitly held that a non-negligible reduction in emissions — there, by regulating vehicles emissions — satisfied the redressability requirement of Article III standing: While it may be true that regulating motor-vehicle emissions will not by itself reverse global warming, it by no means follows that we lack jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it.
Because of the enormity of the potential consequences associated with manmade climate change, the fact that the effectiveness of a remedy might be delayed during the (relatively short) time it takes for a new motor-vehicle fleet to replace an older one is essentially irrelevant.
Nor is it dispositive that developing countries such as China and India are poised to increase greenhouse gas emissions substantially over the next century: A reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere. . . . .
. . . The risk of catastrophic harm, though remote, is nevertheless real. Id. at 525–26 (internal citation omitted).
In other words, under Article III, a perceptible reduction in the advance of climate change is sufficient to redress a plaintiff’s climate change-induced harms.
Full stop.
The majority dismisses this precedent because Massachusetts v. EPA involved a procedural harm, whereas plaintiffs here assert a purely substantive right. Maj. Op. at 24.
But this difference in posture does not affect the outcome.
While the redressability requirement is relaxed in the procedural context, that does not mean (1) we must engage in a similarly relaxed analysis whenever we invoke Massachusetts v. EPA or (2) we cannot rely on Massachusetts v. EPA’s substantive examination of the relationship between government action and the course of climate change.
Accordingly, here, we do not consider the likelihood that plaintiffs will prevail in any newly-awarded agency procedure, nor whether granting access to that procedure will redress plaintiffs’ injury. Cf. Massachusetts v. EPA, 549 U.S. at 517–18; Lujan, 504 U.S. at 572 n.7.
Rather, we assume plaintiffs will prevail — removing the procedural link from the causal chain — and we resume our traditional analysis to determine whether the desired outcome would in fact redress plaintiffs’ harms.
7 The presence of a procedural right is more critical when determining whether the first and second elements of standing are present. This is especially true where Congress has “define(d) injuries and articulate(d) chains of causation that will give rise to a case or controversy where none existed before” by conferring procedural rights that give certain persons a “stake” in an injury that is otherwise not their own. Spokeo, 136 S. Ct. at 1549 (quoting Lujan, 504 U.S. at 580 (Kennedy, J., concurring)). But who seeks to vindicate an injury is irrelevant to the question of whether a court has the tools to relieve that injury.
TO BE CONTINUED ...
Re: JULIANA APPEAL
In Massachusetts v. EPA, the remaining substantive inquiry was whether reducing emissions from fossil-fuel combustion would likely ameliorate climate change-induced injuries despite the global nature of climate change (regardless of whether renewed procedures were themselves likely to mandate such lessening).
The Supreme Court unambiguously answered that question in the affirmative.
That holding squarely applies to the instant facts, rendering the absence of a procedural right here irrelevant.
2. The majority laments that it cannot step into the shoes of the political branches, see Maj. Op. at 32, but appears ready to yield even if those branches walk the Nation over a cliff.
This deference-to-a-fault promotes separation of powers to the detriment of our countervailing constitutional mandate to intervene where the political branches run afoul of our foundational principles.
Our tripartite system of government is often and aptly described as one of “checks and balances.”
The doctrine of standing preserves balance among the branches by keeping separate questions of general governance and those of specific legal entitlement.
But the doctrine of judicial review compels federal courts to fashion and effectuate relief to right legal wrongs, even when — as frequently happens — it requires that we instruct the other branches as to the constitutional limitations on their power.
Indeed, sometimes “the [judicial and governance] roles briefly and partially coincide when a court, in granting relief against actual harm that has been suffered, . . . orders the alteration of an institutional organization or procedure that causes the harm.” Lewis, 518 U.S. at 350; cf. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 474 (1982) (“Proper regard for the complex nature of our constitutional structure requires neither that the Judicial Branch shrink from a confrontation with the other two coequal branches of the Federal Government, nor that it hospitably accept for adjudication claims of constitutional violation by other branches of government where the claimant has not suffered cognizable injury.”).
In my view, this Court must confront and reconcile this tension before deciding that thorny questions of standing preclude review in this case.
And faithful application of our history and precedents reveals that a failure to do so leads to the wrong result.
8 Indeed, the majority has already acknowledged as much in finding plaintiffs’ injuries traceable to the government’s misconduct because the traceability and redressability inquiries are largely coextensive. See Maj. Op. at 19–21; see also Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1146 (2013) (“The Supreme Court has clarified that the ‘fairly traceable’ and ‘redressability’ components for standing overlap and are ‘two facets of a single causation requirement.’ The two are distinct insofar as causality examines the connection between the alleged misconduct and injury, whereas redressability analyzes the connection between the alleged injury and requested judicial relief.”) (internal citation omitted). Here, where the requested relief is simply to stop the ongoing misconduct, the inquiries are nearly identical. Cf. Allen v. Wright, 468 U.S. 737, 753 n.19 (1984) (“(I)t is important to keep the inquiries separate” where “the relief requested goes well beyond the violation of law alleged.”), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014); see also infra Part II.B.3.
9 Nor am I persuaded that Massachusetts v. EPA is distinguishable because of the relaxed standing requirements and “special solicitude” in cases brought by a state against the United States. Massachusetts v. EPA, 549 U.S. at 517–20. When Massachusetts v. EPA was decided, more than a decade ago, there was uncertainty and skepticism as to whether an individual could state a sufficiently definite climate change-induced harm based on gradually warming air temperatures and rising seas. But the Supreme Court sidestepped such questions of the concreteness of the plaintiffs’ injuries by finding that “[Massachusetts’s] stake in the outcome of this case is sufficiently concrete to warrant the exercise of federal judicial power.” Id. at 519. Here and now, the plaintiffs submit undisputed scientific evidence that their distinct and discrete injuries are caused by climate change brought about by emissions from fossil-fuel combustion. They need not rely on the “special solicitude,” id. at 520, of a state to be heard. Regardless, any distinction would go to the concreteness or particularity of plaintiffs’ injuries and not to the issue of redressability.
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The Supreme Court unambiguously answered that question in the affirmative.
That holding squarely applies to the instant facts, rendering the absence of a procedural right here irrelevant.
2. The majority laments that it cannot step into the shoes of the political branches, see Maj. Op. at 32, but appears ready to yield even if those branches walk the Nation over a cliff.
This deference-to-a-fault promotes separation of powers to the detriment of our countervailing constitutional mandate to intervene where the political branches run afoul of our foundational principles.
Our tripartite system of government is often and aptly described as one of “checks and balances.”
The doctrine of standing preserves balance among the branches by keeping separate questions of general governance and those of specific legal entitlement.
But the doctrine of judicial review compels federal courts to fashion and effectuate relief to right legal wrongs, even when — as frequently happens — it requires that we instruct the other branches as to the constitutional limitations on their power.
Indeed, sometimes “the [judicial and governance] roles briefly and partially coincide when a court, in granting relief against actual harm that has been suffered, . . . orders the alteration of an institutional organization or procedure that causes the harm.” Lewis, 518 U.S. at 350; cf. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 474 (1982) (“Proper regard for the complex nature of our constitutional structure requires neither that the Judicial Branch shrink from a confrontation with the other two coequal branches of the Federal Government, nor that it hospitably accept for adjudication claims of constitutional violation by other branches of government where the claimant has not suffered cognizable injury.”).
In my view, this Court must confront and reconcile this tension before deciding that thorny questions of standing preclude review in this case.
And faithful application of our history and precedents reveals that a failure to do so leads to the wrong result.
8 Indeed, the majority has already acknowledged as much in finding plaintiffs’ injuries traceable to the government’s misconduct because the traceability and redressability inquiries are largely coextensive. See Maj. Op. at 19–21; see also Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1146 (2013) (“The Supreme Court has clarified that the ‘fairly traceable’ and ‘redressability’ components for standing overlap and are ‘two facets of a single causation requirement.’ The two are distinct insofar as causality examines the connection between the alleged misconduct and injury, whereas redressability analyzes the connection between the alleged injury and requested judicial relief.”) (internal citation omitted). Here, where the requested relief is simply to stop the ongoing misconduct, the inquiries are nearly identical. Cf. Allen v. Wright, 468 U.S. 737, 753 n.19 (1984) (“(I)t is important to keep the inquiries separate” where “the relief requested goes well beyond the violation of law alleged.”), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014); see also infra Part II.B.3.
9 Nor am I persuaded that Massachusetts v. EPA is distinguishable because of the relaxed standing requirements and “special solicitude” in cases brought by a state against the United States. Massachusetts v. EPA, 549 U.S. at 517–20. When Massachusetts v. EPA was decided, more than a decade ago, there was uncertainty and skepticism as to whether an individual could state a sufficiently definite climate change-induced harm based on gradually warming air temperatures and rising seas. But the Supreme Court sidestepped such questions of the concreteness of the plaintiffs’ injuries by finding that “[Massachusetts’s] stake in the outcome of this case is sufficiently concrete to warrant the exercise of federal judicial power.” Id. at 519. Here and now, the plaintiffs submit undisputed scientific evidence that their distinct and discrete injuries are caused by climate change brought about by emissions from fossil-fuel combustion. They need not rely on the “special solicitude,” id. at 520, of a state to be heard. Regardless, any distinction would go to the concreteness or particularity of plaintiffs’ injuries and not to the issue of redressability.
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Re: JULIANA APPEAL
Taking the long (but essential) way around, I begin first by acknowledging explicitly what the majority does not mention: our history plainly establishes an ambient presumption of judicial review to which separation-of-powers concerns provide a rebuttal under limited circumstances.
Few would contest that “(I)t is emphatically the province and duty of the judicial department” to curb acts of the political branches that contravene those fundamental tenets of American life so dear as to be constitutionalized and thus removed from political whims. See Marbury, 5 U.S. at 177–78.
This presumptive authority entails commensurate power to grant appropriate redress, as recognized in Marbury, “which effectively place(s) upon those who would deny the existence of an effective legal remedy the burden of showing why their case was special.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1874 (2017) (Breyer, J., dissenting).
That is, “there must be something ‘peculiar’ (i.e., special) about a case that warrants ‘excluding the injured party from legal redress and placing it within that class of cases which come under the description of damnum absque injuria — a loss without an injury.’” Id. (cleaned up) (quoting Marbury, 5 U.S. at 163–64).
In sum, although it is the plaintiffs’ burden to establish injury in fact, causation, and redressability, it is the government’s burden to establish why this otherwise-justiciable controversy implicates grander separation-of-powers concerns not already captured by those requirements.
We do not otherwise abdicate our duty to enforce constitutional rights.
Without explicitly laying this groundwork, the majority nonetheless suggests that this case is “special” — and beyond our redress — because plaintiffs’ requested relief requires (1) the messy business of evaluating competing policy considerations to steer the government away from fossil fuels and (2) the intimidating task of supervising implementation over many years, if not decades. See Maj. Op. at 25–27.
I admit these are daunting tasks, but we are constitutionally empowered to undertake them.
There is no justiciability exception for cases of great complexity and magnitude.
3. I readily concede that courts must on occasion refrain from answering those questions that are truly reserved for the political branches, even where core constitutional precepts are implicated.
This deference is known as the “political question doctrine,” and its applicability is governed by a well-worn multifactor test that counsels judicial deference where there is: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Baker v. Carr, 369 U.S. 186, 217 (1962); see also Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195–201 (2012) (discussing and applying Baker factors); Vieth v. Jubelirer, 541 U.S. 267, 277–90 (2004) (same); Nixon v. United States, 506 U.S. 224, 228–38 (1993) (same); Chadha, 462 U.S. at 940–43 (same).
10 The political question doctrine was first conceived in Marbury. See Marbury, 5 U.S. at 165–66 (“By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.”). The modern incarnation of the doctrine has existed relatively unaltered since its exposition in Baker in 1962. Although the majority disclaims the applicability of the political question doctrine, see Maj. Op. at 31, n.9, the opinion’s references to the lack of discernable standards and its reliance on Rucho v. Common Cause, 139 S. Ct. 2484 (2019), as a basis for finding this case nonjusticiable blur any meaningful distinction between the doctrines of standing and political question.
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Few would contest that “(I)t is emphatically the province and duty of the judicial department” to curb acts of the political branches that contravene those fundamental tenets of American life so dear as to be constitutionalized and thus removed from political whims. See Marbury, 5 U.S. at 177–78.
This presumptive authority entails commensurate power to grant appropriate redress, as recognized in Marbury, “which effectively place(s) upon those who would deny the existence of an effective legal remedy the burden of showing why their case was special.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1874 (2017) (Breyer, J., dissenting).
That is, “there must be something ‘peculiar’ (i.e., special) about a case that warrants ‘excluding the injured party from legal redress and placing it within that class of cases which come under the description of damnum absque injuria — a loss without an injury.’” Id. (cleaned up) (quoting Marbury, 5 U.S. at 163–64).
In sum, although it is the plaintiffs’ burden to establish injury in fact, causation, and redressability, it is the government’s burden to establish why this otherwise-justiciable controversy implicates grander separation-of-powers concerns not already captured by those requirements.
We do not otherwise abdicate our duty to enforce constitutional rights.
Without explicitly laying this groundwork, the majority nonetheless suggests that this case is “special” — and beyond our redress — because plaintiffs’ requested relief requires (1) the messy business of evaluating competing policy considerations to steer the government away from fossil fuels and (2) the intimidating task of supervising implementation over many years, if not decades. See Maj. Op. at 25–27.
I admit these are daunting tasks, but we are constitutionally empowered to undertake them.
There is no justiciability exception for cases of great complexity and magnitude.
3. I readily concede that courts must on occasion refrain from answering those questions that are truly reserved for the political branches, even where core constitutional precepts are implicated.
This deference is known as the “political question doctrine,” and its applicability is governed by a well-worn multifactor test that counsels judicial deference where there is: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Baker v. Carr, 369 U.S. 186, 217 (1962); see also Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195–201 (2012) (discussing and applying Baker factors); Vieth v. Jubelirer, 541 U.S. 267, 277–90 (2004) (same); Nixon v. United States, 506 U.S. 224, 228–38 (1993) (same); Chadha, 462 U.S. at 940–43 (same).
10 The political question doctrine was first conceived in Marbury. See Marbury, 5 U.S. at 165–66 (“By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.”). The modern incarnation of the doctrine has existed relatively unaltered since its exposition in Baker in 1962. Although the majority disclaims the applicability of the political question doctrine, see Maj. Op. at 31, n.9, the opinion’s references to the lack of discernable standards and its reliance on Rucho v. Common Cause, 139 S. Ct. 2484 (2019), as a basis for finding this case nonjusticiable blur any meaningful distinction between the doctrines of standing and political question.
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Re: JULIANA APPEAL
In some sense, these factors are frontloaded in significance.
“We have characterized the first three factors as ‘constitutional limitations of a court’s jurisdiction’ and the other three factors as ‘prudential considerations.’” Republic of Marshall Islands v. United States, 865 F.3d 1187, 1200 (9th Cir. 2017) (quoting Corrie v. Caterpillar, Inc., 503 F.3d 974, 981 (9th Cir. 2007)).
Moreover, “we have recognized that the first two are likely the most important.” Marshall Islands, 865 F.3d at 1200 (citing Alperin v. Vatican Bank, 410 F.3d 532, 545 (9th Cir. 2005)).
Yet, we have also recognized that the inquiry is highly case-specific, the factors “often collaps(e) into one another[,]” and any one factor of sufficient weight is enough to render a case unfit for judicial determination. See Marshall Islands, 865 F.3d at 1200 (first alteration in original) (quoting Alperin, 410 F.3d at 544).
Regardless of any intra-factor flexibility and flow, however, there is a clear mandate to apply the political question doctrine both shrewdly and sparingly.
Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question’s presence.
The doctrine of which we treat is one of ‘political questions,’ not one of ‘political cases.’
The courts cannot reject as ‘no law suit’ a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority. Baker, 369 U.S. at 217; see also Corrie, 503 F.3d at 982 (“We will not find a political question ‘merely because (a) decision may have significant political overtones.’”) (quoting Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478U.S. 221, 230 (1986)).
Rather, when detecting the presence of a “political question,” courts must make a “discriminating inquiry into the precise facts and posture of the particular case” and refrain from “resolution by any semantic cataloguing.” Baker, 369 U.S. at 217.
Here, confronted by difficult questions on the constitutionality of policy, the majority creates a minefield of politics en route to concluding that we cannot adjudicate this suit.
And the majority’s map for navigating that minefield is Rucho v. Common Cause, 139 S. Ct. 2484 (2019), an inapposite case about gerrymandering.
My colleagues conclude that climate change is too political for the judiciary to touch by likening it to the process of political representatives drawing political maps to elect other political representatives.
I vehemently disagree.
The government does not address on appeal the district judge’s reasoning that the first, third, fourth, fifth and sixth Baker factors do not apply here.
Neither does the majority rely on any of these factors in its analysis.
In relevant part, I find the opinion below both thorough and well-reasoned, and I adopt its conclusions.
I note, however, that the absence of the first Baker factor — whether the Constitution textually delegates the relevant subject matter to another branch — is especially conspicuous.
As the district judge described, courts invoke this factor only where the Constitution makes an unambiguous commitment of responsibility to one branch of government.
Very few cases turn on this factor, and almost all that do pertain to two areas of constitutional authority: foreign policy and legislative proceedings. See, e.g., Marshall Islands, 865 F.3d at 1200–01 (treaty enforcement); Corrie, 503 F.3d at 983 (military aid); Nixon, 506 U.S. at 234 (impeachment proceedings); see also Davis v. Passman, 442 U.S. 228, 235 n.11 (1979) (“(J)udicial review of congressional employment decisions is constitutionally limited only by the reach of the Speech or Debate Clause[,] . . . [which is] a paradigm example of a textually demonstrable constitutional commitment of [an] issue to a coordinate political department.”) (internal quotation marks omitted); Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2086 (2015) (“The text and structure of the Constitution grant the President the power to recognize foreign nations and governments.”).
Since this matter has been under submission, the Supreme Court cordoned off an additional area from judicial review based in part on a textual commitment to another branch: partisan gerrymandering. See Rucho, 139 S. Ct. at 2494–96.
Obviously, the Constitution does not explicitly address climate change.
But neither does climate change implicitly fall within a recognized political-question area.
As the district judge described, the questions of energy policy at stake here may have rippling effects on foreign policy considerations, but that is not enough to wholly exempt the subject matter from our review. See Juliana v. United States, 217 F. Supp. 3d 1224, 1238 (D. Or. 2016) (“(U)nlike the decisions to go to war, take action to keep a particular foreign leader in power, or give aid to another country, climate change policy is not inherently, or even primarily, a foreign policy decision.”); see also Baker, 369 U.S. at 211 (“(I)t is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.”).
Without endorsement from the constitutional text, the majority’s theory is grounded exclusively in the second Baker factor: a (supposed) lack of clear judicial standards for shaping relief.
Relying heavily on Rucho, the majority contends that we cannot formulate standards (1) to determine what relief “is sufficient to remediate the claimed constitutional violation” or (2) to “supervise[] or enforce[]” such relief. Maj. Op. at 29.
The first point is a red herring.
Plaintiffs submit ample evidence that there is a discernable “tipping point” at which the government’s conduct turns from facilitating mere pollution to inducing an unstoppable cataclysm in violation of plaintiffs’ rights.
Indeed, the majority itself cites plaintiffs’ evidence that “atmospheric carbon levels of 350 parts per million are necessary to stabilize the climate.” Id. at 24.
11 The six Baker factors have been characterized as “reflect[ing] three distinct justifications for withholding judgment on the merits of a dispute.” Zivotofsky v. Clinton, 566 U.S. at 203 (Sotomayor, J., concurring). Under the first Bakerfactor, “abstention is warranted because the court lacks authority to resolve” “issue(s) whose resolution is textually committed to a coordinate political department[.]” Id. Under the second and third factors, abstention is warranted in “circumstances in which a dispute calls for decisionmaking beyond courts’ competence[.]” Id. Under the final three factors, abstention is warranted where “prudence . . . counsel(s) against a court’s resolution of an issue presented.” Id. at 204.
12 Rucho does not turn exclusively on the first Baker factor and acknowledges that there are some areas of districting that courts may police, notwithstanding the Elections Clause’s “assign[ment] to state legislatures the power to prescribe the ‘Times, Places and Manner of holding Elections’ for Members of Congress, while giving Congress the power to ‘make or alter’ any such regulations.” Rucho, 139 S. Ct. at 2495. Instead, Rucho holds that a combination of the text (as illuminated by historical practice) and absence of clear judicial standards precludes judicial review of excessively partisan gerrymanders. See infra Part II.B.4.
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“We have characterized the first three factors as ‘constitutional limitations of a court’s jurisdiction’ and the other three factors as ‘prudential considerations.’” Republic of Marshall Islands v. United States, 865 F.3d 1187, 1200 (9th Cir. 2017) (quoting Corrie v. Caterpillar, Inc., 503 F.3d 974, 981 (9th Cir. 2007)).
Moreover, “we have recognized that the first two are likely the most important.” Marshall Islands, 865 F.3d at 1200 (citing Alperin v. Vatican Bank, 410 F.3d 532, 545 (9th Cir. 2005)).
Yet, we have also recognized that the inquiry is highly case-specific, the factors “often collaps(e) into one another[,]” and any one factor of sufficient weight is enough to render a case unfit for judicial determination. See Marshall Islands, 865 F.3d at 1200 (first alteration in original) (quoting Alperin, 410 F.3d at 544).
Regardless of any intra-factor flexibility and flow, however, there is a clear mandate to apply the political question doctrine both shrewdly and sparingly.
Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question’s presence.
The doctrine of which we treat is one of ‘political questions,’ not one of ‘political cases.’
The courts cannot reject as ‘no law suit’ a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority. Baker, 369 U.S. at 217; see also Corrie, 503 F.3d at 982 (“We will not find a political question ‘merely because (a) decision may have significant political overtones.’”) (quoting Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478U.S. 221, 230 (1986)).
Rather, when detecting the presence of a “political question,” courts must make a “discriminating inquiry into the precise facts and posture of the particular case” and refrain from “resolution by any semantic cataloguing.” Baker, 369 U.S. at 217.
Here, confronted by difficult questions on the constitutionality of policy, the majority creates a minefield of politics en route to concluding that we cannot adjudicate this suit.
And the majority’s map for navigating that minefield is Rucho v. Common Cause, 139 S. Ct. 2484 (2019), an inapposite case about gerrymandering.
My colleagues conclude that climate change is too political for the judiciary to touch by likening it to the process of political representatives drawing political maps to elect other political representatives.
I vehemently disagree.
The government does not address on appeal the district judge’s reasoning that the first, third, fourth, fifth and sixth Baker factors do not apply here.
Neither does the majority rely on any of these factors in its analysis.
In relevant part, I find the opinion below both thorough and well-reasoned, and I adopt its conclusions.
I note, however, that the absence of the first Baker factor — whether the Constitution textually delegates the relevant subject matter to another branch — is especially conspicuous.
As the district judge described, courts invoke this factor only where the Constitution makes an unambiguous commitment of responsibility to one branch of government.
Very few cases turn on this factor, and almost all that do pertain to two areas of constitutional authority: foreign policy and legislative proceedings. See, e.g., Marshall Islands, 865 F.3d at 1200–01 (treaty enforcement); Corrie, 503 F.3d at 983 (military aid); Nixon, 506 U.S. at 234 (impeachment proceedings); see also Davis v. Passman, 442 U.S. 228, 235 n.11 (1979) (“(J)udicial review of congressional employment decisions is constitutionally limited only by the reach of the Speech or Debate Clause[,] . . . [which is] a paradigm example of a textually demonstrable constitutional commitment of [an] issue to a coordinate political department.”) (internal quotation marks omitted); Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2086 (2015) (“The text and structure of the Constitution grant the President the power to recognize foreign nations and governments.”).
Since this matter has been under submission, the Supreme Court cordoned off an additional area from judicial review based in part on a textual commitment to another branch: partisan gerrymandering. See Rucho, 139 S. Ct. at 2494–96.
Obviously, the Constitution does not explicitly address climate change.
But neither does climate change implicitly fall within a recognized political-question area.
As the district judge described, the questions of energy policy at stake here may have rippling effects on foreign policy considerations, but that is not enough to wholly exempt the subject matter from our review. See Juliana v. United States, 217 F. Supp. 3d 1224, 1238 (D. Or. 2016) (“(U)nlike the decisions to go to war, take action to keep a particular foreign leader in power, or give aid to another country, climate change policy is not inherently, or even primarily, a foreign policy decision.”); see also Baker, 369 U.S. at 211 (“(I)t is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.”).
Without endorsement from the constitutional text, the majority’s theory is grounded exclusively in the second Baker factor: a (supposed) lack of clear judicial standards for shaping relief.
Relying heavily on Rucho, the majority contends that we cannot formulate standards (1) to determine what relief “is sufficient to remediate the claimed constitutional violation” or (2) to “supervise[] or enforce[]” such relief. Maj. Op. at 29.
The first point is a red herring.
Plaintiffs submit ample evidence that there is a discernable “tipping point” at which the government’s conduct turns from facilitating mere pollution to inducing an unstoppable cataclysm in violation of plaintiffs’ rights.
Indeed, the majority itself cites plaintiffs’ evidence that “atmospheric carbon levels of 350 parts per million are necessary to stabilize the climate.” Id. at 24.
11 The six Baker factors have been characterized as “reflect[ing] three distinct justifications for withholding judgment on the merits of a dispute.” Zivotofsky v. Clinton, 566 U.S. at 203 (Sotomayor, J., concurring). Under the first Bakerfactor, “abstention is warranted because the court lacks authority to resolve” “issue(s) whose resolution is textually committed to a coordinate political department[.]” Id. Under the second and third factors, abstention is warranted in “circumstances in which a dispute calls for decisionmaking beyond courts’ competence[.]” Id. Under the final three factors, abstention is warranted where “prudence . . . counsel(s) against a court’s resolution of an issue presented.” Id. at 204.
12 Rucho does not turn exclusively on the first Baker factor and acknowledges that there are some areas of districting that courts may police, notwithstanding the Elections Clause’s “assign[ment] to state legislatures the power to prescribe the ‘Times, Places and Manner of holding Elections’ for Members of Congress, while giving Congress the power to ‘make or alter’ any such regulations.” Rucho, 139 S. Ct. at 2495. Instead, Rucho holds that a combination of the text (as illuminated by historical practice) and absence of clear judicial standards precludes judicial review of excessively partisan gerrymanders. See infra Part II.B.4.
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Re: JULIANA APPEAL
This clear line stands in stark contrast to Rucho, which held that — even assuming an excessively partisan gerrymander was unconstitutional — no standards exist by which to determine when a rights violation has even occurred.
There, “(t)he central problem [wa]s not determining whether a jurisdiction has engaged in partisan gerrymandering."
"It [wa]s determining when political gerrymandering has gone too far.” Rucho, 139 S. Ct. at 2497 (internal quotation marks omitted); see also id. at 2498 (“(T)he question is one of degree: How to provide a standard for deciding how much partisan dominance is too much.”) (internal quotation marks omitted); id. at 2499 (“If federal courts are to . . . adjudicate(e) partisan gerrymandering claims, they must be armed with a standard that can reliably differentiate unconstitutional from constitutional political gerrymandering.”) (internal quotation marks and citation omitted).
Here, the right at issue is fundamentally one of a discernable standard: the amount of fossil-fuel emissions that will irreparably devastate our Nation.
That amount can be established by scientific evidence like that proffered by the plaintiffs.
Moreover, we need not definitively determine that standard today.
Rather, we need conclude only that plaintiffs have submitted sufficient evidence to create a genuine dispute as to whether such an amount can possibly be determined as a matter of scientific fact.
Plaintiffs easily clear this bar.
Of course, plaintiffs will have to carry their burden of proof to establish this fact in order to prevail at trial, but that issue is not before us.
We must not get ahead of ourselves.
The procedural posture of this case also informs the question of oversight and enforcement.
It appears the majority’s real concerns lie not in the judiciary’s ability to draw a line between lawful and unlawful conduct, but in our ability to equitably walk the government back from that line without wholly subverting the authority of our coequal branches.
My colleagues take great issue with plaintiffs’ request for a “plan” to reduce fossil-fuel emissions.
I am not so concerned.
At this stage, we need not promise plaintiffs the moon (or, more apropos, the earth in a habitable state).
For purposes of standing, we need hold only that the trial court could fashion some sort of meaningful relief should plaintiffs prevail on the merits.
Nor would any such remedial “plan” necessarily require the courts to muck around in policymaking to an impermissible degree; the scope and number of policies a court would have to reform to provide relief is irrelevant to the second Baker factor, which asks only if there are judicially discernable standards to guide that reformation.
Indeed, our history is no stranger to widespread, programmatic changes in government functions ushered in by the judiciary’s commitment to requiring adherence to the Constitution.
Upholding the Constitution’s prohibition on cruel and unusual punishment, for example, the Court ordered the overhaul of prisons in the Nation’s most populous state. See Brown v. Plata, 563 U.S. 493, 511 (2011) (“Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.”)
And in its finest hour, the Court mandated the racial integration of every public school — state and federal — in the Nation, vindicating the Constitution’s guarantee of equal protection under the law. See Brown v. Bd. of Educ. (Brown I), 347 U.S. 483 (1954); Bolling v. Sharpe, 347 U.S. 497 (1954).
In the school desegregation cases, the Supreme Court was explicitly unconcerned with the fact that crafting relief would require individualized review of thousands of state and local policies that facilitated segregation.
Rather, a unanimous Court held that the judiciary could work to dissemble segregation over time while remaining cognizant of the many public interests at stake: To effectuate [the plaintiffs’] interest(s) may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in [Brown I].
Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner.
But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.
. . . (T)he courts may find that additional time is necessary to carry out the ruling in an effective manner.
The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date.
To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 300–01 (1955).
13 It is possible, of course, that the district court ultimately concludes that it is unable to provide meaningful redress based on the facts proved at trial, but trial has not yet occurred. Our present occasion is to decide only whether plaintiffs have raised a genuine dispute as to the judiciary’s ability to provide meaningful redress under any subset of the facts at issue today. See Maj. Op. at 18 (citing Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002)).
14 In contrast, we are haunted by the days we declined to curtail the government’s approval of invidious discrimination in public life, see Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting) (“(T)he judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.”), and neglected to free thousands of innocents prejudicially interned by their own government without cause, see Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (“Korematsu was gravely wrong the day it was decided[.]”).
TO BE CONTINUED ...
There, “(t)he central problem [wa]s not determining whether a jurisdiction has engaged in partisan gerrymandering."
"It [wa]s determining when political gerrymandering has gone too far.” Rucho, 139 S. Ct. at 2497 (internal quotation marks omitted); see also id. at 2498 (“(T)he question is one of degree: How to provide a standard for deciding how much partisan dominance is too much.”) (internal quotation marks omitted); id. at 2499 (“If federal courts are to . . . adjudicate(e) partisan gerrymandering claims, they must be armed with a standard that can reliably differentiate unconstitutional from constitutional political gerrymandering.”) (internal quotation marks and citation omitted).
Here, the right at issue is fundamentally one of a discernable standard: the amount of fossil-fuel emissions that will irreparably devastate our Nation.
That amount can be established by scientific evidence like that proffered by the plaintiffs.
Moreover, we need not definitively determine that standard today.
Rather, we need conclude only that plaintiffs have submitted sufficient evidence to create a genuine dispute as to whether such an amount can possibly be determined as a matter of scientific fact.
Plaintiffs easily clear this bar.
Of course, plaintiffs will have to carry their burden of proof to establish this fact in order to prevail at trial, but that issue is not before us.
We must not get ahead of ourselves.
The procedural posture of this case also informs the question of oversight and enforcement.
It appears the majority’s real concerns lie not in the judiciary’s ability to draw a line between lawful and unlawful conduct, but in our ability to equitably walk the government back from that line without wholly subverting the authority of our coequal branches.
My colleagues take great issue with plaintiffs’ request for a “plan” to reduce fossil-fuel emissions.
I am not so concerned.
At this stage, we need not promise plaintiffs the moon (or, more apropos, the earth in a habitable state).
For purposes of standing, we need hold only that the trial court could fashion some sort of meaningful relief should plaintiffs prevail on the merits.
Nor would any such remedial “plan” necessarily require the courts to muck around in policymaking to an impermissible degree; the scope and number of policies a court would have to reform to provide relief is irrelevant to the second Baker factor, which asks only if there are judicially discernable standards to guide that reformation.
Indeed, our history is no stranger to widespread, programmatic changes in government functions ushered in by the judiciary’s commitment to requiring adherence to the Constitution.
Upholding the Constitution’s prohibition on cruel and unusual punishment, for example, the Court ordered the overhaul of prisons in the Nation’s most populous state. See Brown v. Plata, 563 U.S. 493, 511 (2011) (“Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.”)
And in its finest hour, the Court mandated the racial integration of every public school — state and federal — in the Nation, vindicating the Constitution’s guarantee of equal protection under the law. See Brown v. Bd. of Educ. (Brown I), 347 U.S. 483 (1954); Bolling v. Sharpe, 347 U.S. 497 (1954).
In the school desegregation cases, the Supreme Court was explicitly unconcerned with the fact that crafting relief would require individualized review of thousands of state and local policies that facilitated segregation.
Rather, a unanimous Court held that the judiciary could work to dissemble segregation over time while remaining cognizant of the many public interests at stake: To effectuate [the plaintiffs’] interest(s) may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in [Brown I].
Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner.
But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.
. . . (T)he courts may find that additional time is necessary to carry out the ruling in an effective manner.
The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date.
To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 300–01 (1955).
13 It is possible, of course, that the district court ultimately concludes that it is unable to provide meaningful redress based on the facts proved at trial, but trial has not yet occurred. Our present occasion is to decide only whether plaintiffs have raised a genuine dispute as to the judiciary’s ability to provide meaningful redress under any subset of the facts at issue today. See Maj. Op. at 18 (citing Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002)).
14 In contrast, we are haunted by the days we declined to curtail the government’s approval of invidious discrimination in public life, see Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting) (“(T)he judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.”), and neglected to free thousands of innocents prejudicially interned by their own government without cause, see Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (“Korematsu was gravely wrong the day it was decided[.]”).
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Re: JULIANA APPEAL
As we are all too aware, it took decades to even partially realize Brown’s promise, but the slow churn of constitutional vindication did not dissuade the Brown Court, and it should not dissuade us here.
Plaintiffs’ request for a “plan” is neither novel nor judicially incognizable.
Rather, consistent with our historical practices, their request is a recognition that remedying decades of institutionalized violations may take some time.
Here, too, decelerating from our path toward cataclysm will undoubtedly require “elimination of a variety of obstacles.”
Those obstacles may be great in number, novelty, and magnitude, but there is no indication that they are devoid of discernable standards.
Busing mandates, facilities allocation, and district-drawing were all “complex policy decisions” faced by post-Brown trial courts, see Maj. Op. at 25, and I have no doubt that disentangling the government from promotion of fossil fuels will take an equally deft judicial hand.
Mere complexity, however, does not put the issue out of the courts’ reach.
Neither the government nor the majority has articulated why the courts could not weigh scientific and prudential considerations — as we often do — to put the government on a path to constitutional compliance.
The majority also expresses concern that any remedial plan would require us to compel “the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change[.]” Id. at 25.
Even if the operative complaint is fairly read as requesting an affirmative scheme to address all drivers of climate change, however caused, see id. at 23 n.6., such an overbroad request does not doom our ability to redress those drivers implicated by the conduct at issue here.
Courts routinely grant plaintiffs less than the full gamut of requested relief, and our inability to compel legislation that addresses emissions beyond the scope of this case — such as those purely in the private sphere or within the control of foreign governments — speaks nothing to our ability to enjoin the government from exercising its discretion in violation of plaintiffs’ constitutional rights.
4. In sum, resolution of this action requires answers only to scientific questions, not political ones.
And plaintiffs have put forth sufficient evidence demonstrating their entitlement to have those questions addressed at trial in a court of law.
As discussed above, the majority reaches the opposite conclusion not by marching purposefully through the Baker factors, which carve out a narrow set of nonjusticiable political cases, but instead by broadly invoking Rucho in a manner that would cull from our dockets any case that presents administrative issues “too difficult for the judiciary to manage.” Maj. Op. at 28.
That simply is not the test.
Difficult questions are not necessarily political questions and, beyond reaching the wrong conclusion in this case, the majority’s application of Rucho threatens to eviscerate judicial review in a swath of complicated but plainly apolitical contexts.
Rucho’s limitations should be apparent on the face of that opinion.
Rucho addresses the political process itself, namely whether the metastasis of partisan politics has unconstitutionally invaded the drawing of political districts within states.
Indeed, the Rucho opinion characterizes the issue before it as a request for the Court to reallocate political power between the major parties. Rucho, 139 S. Ct. at 2502, 2507, 2508.
Baker factors aside, Rucho surely confronts fundamentally “political” questions in the common sense of the term.
Nothing about climate change, however, is inherently political.
The majority is correct that redressing climate change will require consideration of scientific, economic, energy, and other policy factors.
But that endeavor does not implicate the way we elect representatives, assign governmental powers, or otherwise structure our polity.
Regardless, we do not limit our jurisdiction based on common parlance.
Instead, legal and constitutional principles define the ambit of our authority.
In the present case, the Baker factors provide the relevant guide and further distinguish Rucho.
As noted above, Rucho’s holding that policing partisan gerrymandering is beyond the courts’ competence rests heavily on the first Baker factor, i.e., the textual and historical delegation of electoral-district drawing to state legislatures.
The Rucho Court decided it could not discern mathematical standards to navigate a way out of that particular political thicket.
It did not, however, hold that mathematical (or scientific) difficulties in creating appropriate standards divest jurisdiction in any context.
TO BE CONTINUED ...
Plaintiffs’ request for a “plan” is neither novel nor judicially incognizable.
Rather, consistent with our historical practices, their request is a recognition that remedying decades of institutionalized violations may take some time.
Here, too, decelerating from our path toward cataclysm will undoubtedly require “elimination of a variety of obstacles.”
Those obstacles may be great in number, novelty, and magnitude, but there is no indication that they are devoid of discernable standards.
Busing mandates, facilities allocation, and district-drawing were all “complex policy decisions” faced by post-Brown trial courts, see Maj. Op. at 25, and I have no doubt that disentangling the government from promotion of fossil fuels will take an equally deft judicial hand.
Mere complexity, however, does not put the issue out of the courts’ reach.
Neither the government nor the majority has articulated why the courts could not weigh scientific and prudential considerations — as we often do — to put the government on a path to constitutional compliance.
The majority also expresses concern that any remedial plan would require us to compel “the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change[.]” Id. at 25.
Even if the operative complaint is fairly read as requesting an affirmative scheme to address all drivers of climate change, however caused, see id. at 23 n.6., such an overbroad request does not doom our ability to redress those drivers implicated by the conduct at issue here.
Courts routinely grant plaintiffs less than the full gamut of requested relief, and our inability to compel legislation that addresses emissions beyond the scope of this case — such as those purely in the private sphere or within the control of foreign governments — speaks nothing to our ability to enjoin the government from exercising its discretion in violation of plaintiffs’ constitutional rights.
4. In sum, resolution of this action requires answers only to scientific questions, not political ones.
And plaintiffs have put forth sufficient evidence demonstrating their entitlement to have those questions addressed at trial in a court of law.
As discussed above, the majority reaches the opposite conclusion not by marching purposefully through the Baker factors, which carve out a narrow set of nonjusticiable political cases, but instead by broadly invoking Rucho in a manner that would cull from our dockets any case that presents administrative issues “too difficult for the judiciary to manage.” Maj. Op. at 28.
That simply is not the test.
Difficult questions are not necessarily political questions and, beyond reaching the wrong conclusion in this case, the majority’s application of Rucho threatens to eviscerate judicial review in a swath of complicated but plainly apolitical contexts.
Rucho’s limitations should be apparent on the face of that opinion.
Rucho addresses the political process itself, namely whether the metastasis of partisan politics has unconstitutionally invaded the drawing of political districts within states.
Indeed, the Rucho opinion characterizes the issue before it as a request for the Court to reallocate political power between the major parties. Rucho, 139 S. Ct. at 2502, 2507, 2508.
Baker factors aside, Rucho surely confronts fundamentally “political” questions in the common sense of the term.
Nothing about climate change, however, is inherently political.
The majority is correct that redressing climate change will require consideration of scientific, economic, energy, and other policy factors.
But that endeavor does not implicate the way we elect representatives, assign governmental powers, or otherwise structure our polity.
Regardless, we do not limit our jurisdiction based on common parlance.
Instead, legal and constitutional principles define the ambit of our authority.
In the present case, the Baker factors provide the relevant guide and further distinguish Rucho.
As noted above, Rucho’s holding that policing partisan gerrymandering is beyond the courts’ competence rests heavily on the first Baker factor, i.e., the textual and historical delegation of electoral-district drawing to state legislatures.
The Rucho Court decided it could not discern mathematical standards to navigate a way out of that particular political thicket.
It did not, however, hold that mathematical (or scientific) difficulties in creating appropriate standards divest jurisdiction in any context.
TO BE CONTINUED ...
Re: JULIANA APPEAL
Such an expansive reading of Rucho would permit the “political question” exception to swallow the rule.
Global warming is certainly an imposing conundrum, but so are diversity in higher education, the intersection between prenatal life and maternal health, the role of religion in civic society, and many other social concerns. Cf. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 360 (1978) (“(T)he line between honest and thoughtful appraisal of the effects of past discrimination and paternalistic stereotyping is not so clear[.]”); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 871 (1992) (stating that Roe v. Wade, 410 U.S. 113 (1973), involved the “difficult question” of determining the “weight to be given [the] state interest” in light of the “strength of the woman’s [privacy] interest”); Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2094 (2019) (Kavanaugh, J., concurring) (noting that determining the constitutionality of a large cross’s presence on public land was “difficult because it represents a clash of genuine and important interests”).
These issues may not have been considered within the purview of the judicial branch had the Court imported wholesale Rucho’s “manageable standards” analysis even in the absence of Rucho’s inherently political underpinnings.
Beyond the outcome of the instant case, I fear that the majority’s holding strikes a powerful blow to our ability to hear important cases of widespread concern.
III. To be sure, unless there is a constitutional violation, courts should allow the democratic and political processes to perform their functions.
And while all would now readily agree that the 91 years between the Emancipation Proclamation and the decision in Brown v. Board was too long, determining when a court must step in to protect fundamental rights is not an exact science.
In this case, my colleagues say that time is “never”; I say it is now.
Were we addressing a matter of social injustice, one might sincerely lament any delay, but take solace that “the arc of the moral universe is long, but it bends towards justice.”
The denial of an individual, constitutional right — though grievous and harmful — can be corrected in the future, even if it takes 91 years.
And that possibility provides hope for future generations.
Where is the hope in today’s decision?
Plaintiffs’ claims are based on science, specifically, an impending point of no return.
If plaintiffs’ fears, backed by the government’s own studies, prove true, history will not judge us kindly.
When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?
I would hold that plaintiffs have standing to challenge the government’s conduct, have articulated claims under the Constitution, and have presented sufficient evidence to press those claims at trial.
I would therefore affirm the district court.
With respect, I dissent.
15 Dr. Martin Luther King, Jr., Remaining Awake Through a Great Revolution, Address at the National Cathedral, Washington, D.C. (Mar. 31, 1968). In coining this language, Dr. King was inspired by an 1853 sermon by abolitionist Theodore Parker. See Theodore Parker, Of Justice and the Conscience, in Ten Sermons of Religion 84–85 (Boston, Crosby, Nichols & Co. 1853).
Global warming is certainly an imposing conundrum, but so are diversity in higher education, the intersection between prenatal life and maternal health, the role of religion in civic society, and many other social concerns. Cf. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 360 (1978) (“(T)he line between honest and thoughtful appraisal of the effects of past discrimination and paternalistic stereotyping is not so clear[.]”); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 871 (1992) (stating that Roe v. Wade, 410 U.S. 113 (1973), involved the “difficult question” of determining the “weight to be given [the] state interest” in light of the “strength of the woman’s [privacy] interest”); Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2094 (2019) (Kavanaugh, J., concurring) (noting that determining the constitutionality of a large cross’s presence on public land was “difficult because it represents a clash of genuine and important interests”).
These issues may not have been considered within the purview of the judicial branch had the Court imported wholesale Rucho’s “manageable standards” analysis even in the absence of Rucho’s inherently political underpinnings.
Beyond the outcome of the instant case, I fear that the majority’s holding strikes a powerful blow to our ability to hear important cases of widespread concern.
III. To be sure, unless there is a constitutional violation, courts should allow the democratic and political processes to perform their functions.
And while all would now readily agree that the 91 years between the Emancipation Proclamation and the decision in Brown v. Board was too long, determining when a court must step in to protect fundamental rights is not an exact science.
In this case, my colleagues say that time is “never”; I say it is now.
Were we addressing a matter of social injustice, one might sincerely lament any delay, but take solace that “the arc of the moral universe is long, but it bends towards justice.”
The denial of an individual, constitutional right — though grievous and harmful — can be corrected in the future, even if it takes 91 years.
And that possibility provides hope for future generations.
Where is the hope in today’s decision?
Plaintiffs’ claims are based on science, specifically, an impending point of no return.
If plaintiffs’ fears, backed by the government’s own studies, prove true, history will not judge us kindly.
When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?
I would hold that plaintiffs have standing to challenge the government’s conduct, have articulated claims under the Constitution, and have presented sufficient evidence to press those claims at trial.
I would therefore affirm the district court.
With respect, I dissent.
15 Dr. Martin Luther King, Jr., Remaining Awake Through a Great Revolution, Address at the National Cathedral, Washington, D.C. (Mar. 31, 1968). In coining this language, Dr. King was inspired by an 1853 sermon by abolitionist Theodore Parker. See Theodore Parker, Of Justice and the Conscience, in Ten Sermons of Religion 84–85 (Boston, Crosby, Nichols & Co. 1853).