Bench Memos

NRO’s home for judicial news and analysis.

More on Pandering


As Aaron Streett points out (in yesterday’s SCt Today), Justice Stevens’s pandering to Justice Kennedy’s vanity in the “global warming” case was not limited to his misuse of Georgia v. Tennessee Copper:


Although this opinion has been touted for its discussion of standing principles, less attention has been paid to the important legal principle for which it stands: that it is always prudent to curry favor with AMK to hold his critical fifth vote. (Recall Roper v. Simmons, where JPS confidently asserted that if “Alexander Hamilton . . . were sitting with us today” he would eagerly “join Justice Kennedy’s opinion for the Court,” rather than, say, shooting Christopher Simmons with a dueling pistol for drowning an elderly stranger for sport.) Gratuitously block-quoting from AMK’s Lujan concurrence, JPS held that Massachusetts had standing to challenge the EPA’s inaction because global warming has already caused “rising seas . . . to swallow Massachusetts’ coastal land.” JPS proclaimed that a sovereign state receives “special solicitude” in the standing analysis when it seeks to vindicate quasi-sovereign interests such as protecting territory. For this proposition, he proffered a highly creative reading of a 1907 Holmes opinion (Georgia v. Tennessee Copper) and none other than Alden v. Maine (1999), AMK’s paean to state dignity, from which JPS dissented.


Tags: Whelan


Subscribe to National Review