Supreme judicial activism

Emotion and arrogance carried the banner at the U.S. Supreme Court this week. Monday was a red-letter day for judicial activists who don't want to bother with all that messy democracy stuff.

The most well-reasoned and logical writing to come from the court's 5-4 decision that all but ordered the EPA to regulate carbon dioxide emissions, was in the dissent authored by Chief Justice John G. Roberts. In it, he carefully notes what the role of courts should be under the Constitution and concludes that the plaintiffs (which included several states and other parties) had no standing to sue and did not come close to proving any injury as a result of current EPA regulations. Merely having a good cause is not enough.

"Global warming may be a 'crisis,' even 'the most pressing environmental problem of our time,"' he wrote. "Indeed, it may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it. It is not a problem, however, that has escaped the attention of policymakers in the executive and legislative branches of our government. ..."

In other words, the big issues of the day, including how to deal with the threat of global warming, should be hashed out through the sometimes messy process that includes voters, representatives, public hearings and an exchange of ideas. Don't go whining to the courts in an attempt to do an end-around on this system.

Unfortunately, the court's narrow majority legitimized exactly the opposite.

Massachusetts and other plaintiffs claimed that the EPA's insistence that it did not have authority to regulate carbon dioxide emissions would lead to the erosion of Massachusetts shoreline as global warming led to a rise in sea levels. To win this case, they presumably had to show that new emissions standards imposed on new model vehicles would save those shorelines, despite an increase in carbon emissions in countries such as China, and despite a host of other factors that have nothing to do with the EPA. They also had to show that the coast was in fact disappearing, and that it was doing so because of the EPA.

As a practical matter, the plaintiffs proved no such things. As Roberts said, the case rested on "pure conjecture." The court, he said, exists "to decide concrete cases — not to serve as a convenient forum for policy debates."

But because of this decision, Congress and the administration will enter a battle over regulation that, whatever the outcome, will likely wind up back in court — where wise justices believe they know best of all.