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Bench Memos

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Re: Standing for Nothing



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With respect to the Supreme Court’s ruling in the EPA “global warming” case:  Highlighting Chief Justice Roberts’s devastating analysis, I asked in this post “how any justice serious about the judicial role could sign on to” Justice Stevens’s use of the 1907 ruling in Georgia v. Tennessee Copper Co. in support of his holding on standing.  It turns out that the probable explanation is even bleaker than I imagined:  Justice Kennedy himself raised the Tennessee Copper case in oral argument (see transcript at pages 14-15; HT Tony Mauro via How Appealing) and evidently imagined that he had an ingenious insight that had escaped everyone else.  It seems quite likely that everyone but Kennedy recognized that Tennessee Copper was irrelevant to the standing question but that Stevens drafted his opinion to pander to Kennedy’s vanity—and Souter, Ginsburg, and Breyer gladly signed on.  Such is the sorry state of Supreme Court decisionmaking by these five justices. 


Tags: Whelan


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