Bench Memos

Law & the Courts

Badly Mistaken Judge Aiken

In January 2020—some 17 months ago—a Ninth Circuit panel, after some not-so-subtle prodding by the Supreme Court, ruled in Juliana v. U.S. that the plaintiffs lacked standing to pursue their claim that they have a substantive due process right to a stable climate, and it “remand[ed] this case to the district court [Judge Ann L. Aiken] with instructions to dismiss for lack of Article III standing.” (Emphasis added.) So I was surprised to learn from Jonathan Adler that Judge Aiken not only hadn’t long ago dismissed the case but has now ordered that a settlement conference take place. But I suppose that nothing should surprise me from the judge who issued in this case what I described as “perhaps the most pervasively lunatic ruling I have ever seen.”

Aiken’s most recent hijinks have in turn led 17 states to move to intervene in the case to protect against the possibility of a collusive settlement between the Biden administration and the plaintiffs that would “overhaul our national energy system via federal-court fiat.” As the states put it, “a remarkable series of events has shaken the States’ confidence in the [Ninth Circuit] mandate’s practical finality and in their assurance that the federal government will continue to defend the States’ interests.” That series includes the federal government’s agreement to participate in the settlement conference:

Because Defendants [the federal government] decisively prevailed in this litigation, their agreement to participate in any post-mandate settlement discussion necessarily raises concerns. At best, they will preserve their victory; at worst, they will arrogate to themselves policymaking powers that the People entrusted to their elected representatives, not the Department of Justice, and in so doing harm the States and their citizens. Based on the federal government’s approach to other high-profile litigation in the time since the Ninth Circuit’s mandate issued, the States have cause to believe the latter is likely.

Since President Biden’s inauguration, the federal government has repeatedly used  unprecedented, collusive litigation maneuvers to avoid the legal processes our government must normally respect before implementing new policies. The recent “public charge rule” litigation provides a prime example. There, despite having achieved a likely path to victory before the Supreme Court— as indicated by multiple Supreme Court stays of adverse lower-court orders and a grant of certiorari—the federal government, “[i]n concert with the various plaintiffs … simultaneously dismissed all the cases challenging the rule (including cases pending before the Supreme Court), acquiesced in a single judge’s nationwide vacatur of the rule, leveraged that now-unopposed vacatur to immediately remove the rule from the Federal Register, and quickly engaged in a cursory rulemaking stating that the federal government was reverting back to the Clinton-era guidance—all without the normal notice and comment typically needed to change rules.” [Quoting an opinion by Judge VanDyke.]

I doubt very much that the Supreme Court will look kindly on any further undertaking by Judge Aiken in this case.

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