Flash again to the October 2006 Time period. It was the primary full time period for Chief Justice Roberts and Justice Alito. That time period, Chief Justice Roberts wrote “The way in which to cease discrimination on the idea of race is to cease discriminating on the idea of race.” And at that time, I feel he truly meant it! (Keep tuned for this week). One among Roberts’s most vigorous dissents that time period got here in Massachusetts v. EPA. That 5-4 choice held that Massachusetts had standing to problem the Bush administration’s failures to control greenhouse fuel emissions. The choice was heralded by environmental students, however it all the time caught out like a sore thumb amongst standing nerds. What precisely was the idea for the “particular solicitude” of state standing? (Is that something just like the “equal sovereignty” in Shelby County?)
Soar ahead sixteen years. Now, states routinely take the federal authorities to courtroom over just about each coverage. Purple states sued the Obama and now Biden administrations. Blue states sued the Trump administration. And alongside the way in which, Massachusetts v. EPA was a useful precedent for pink and blue states alike. However is it nonetheless good legislation? After United States v. Texas, the reply might not be so clear.
Let’s begin with Justice Kavanaugh’s majority opinion. He cited Massachusetts v. EPA solely as soon as in a footnote. And Justice Kavanaugh introduced the case in very unfavorable phrases:
As a part of their argument for standing, the States additionally level to Massachusetts v. EPA, 549 U. S. 497 (2007). Placing apart any disagreements that some might have with Massachusetts v. EPA, that call doesn’t management this case. The difficulty there concerned a problem to the denial of a statutorily licensed petition for rulemaking, not a problem to an train of the Government’s enforcement discretion.
Apart from Chief Justice Roberts, has any member of the bulk expressed any “disagreement” with Massachusetts v. EPA? Put that precedent on life help. Or is it already lifeless? Justice Gorsuch means that the decrease courts ought to forged the case apart:
Subsequent, the Courtroom contends that, “when the Government Department elects to not arrest or prosecute, it doesn’t train coercive energy over a person’s liberty or property.” Ante, at 6. Right here once more, in precept, I agree. But when an train of coercive energy issues a lot to the Article III standing inquiry, the best way to clarify selections like Massachusetts v. EPA? There the Courtroom held that Massachusetts had standing to problem the federal authorities’s choice to not regulate greenhouse fuel emissions from new motor automobiles. And what may very well be much less coercive than a call to not regulate? In Massachusetts v. EPA, the Courtroom selected to miss this problem partially as a result of it thought the State’s declare of standing deserved “particular solicitude.” I’ve doubts about that transfer. Earlier than Massachusetts v. EPA, the notion that States take pleasure in relaxed standing guidelines “ha[d] no foundation in our jurisprudence.” Id., at 536 (ROBERTS, C. J., dissenting). Nor has “particular solicitude” performed a significant function on this Courtroom’s selections within the years since. Even so, it is laborious to not marvel why the Courtroom says nothing about “particular solicitude” on this case. And it is laborious to not suppose, too, that decrease courts ought to simply depart that concept on the shelf in future ones.
I’ve seen this transfer earlier than. In American Legion, Justice Gorsuch advised that the Courtroom had already deserted the Lemon take a look at. Then in Kennedy v. Bremerton, Justice Gorsuch instructed the decrease courts to now not comply with the Lemon take a look at.
Justice Alito, in dissent, evokes Justice Scalia’s imagery of the Lemon take a look at rising from the grave like “some ghoul in a late evening horror film.”
So relatively than answering questions on this case, the bulk’s footnote on Massachusetts raises extra questions on Massachusetts itself—most significantly, has this monumental choice been quietly interred? Cf. ante, at 3 (GORSUCH, J., concurring in judgment).
Then once more, Justice Alito appears peeved that blue states can depend on “particular solicitude” however not learn states:
Our legislation on standing mustn’t deprive the State of even that modest safety. We must always not deal with Texas much less favorably than Massachusetts. And even when we don’t view Texas’s standing argument with any “particular solicitude,” we must always no less than chorus from treating it with particular hostility by failing to use our normal take a look at for Article III standing.
Possibly “particular solicitude” is already lifeless. I suppose Texas is a warning that decrease courts cite Massachusetts v. EPA at their very own peril, as some future case might deem the precedent “deserted.”
