Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—April 2

An empty podium awaits the arrival of U.S. Environmental Protection Agency (EPA) Acting Administrator Andrew Wheeler to address staff at EPA headquarters in Washington, U.S., July 11, 2018. (Ting Shen/Reuters)

2007—In Massachusetts v. EPA, the Supreme Court rules by a 5-4 vote, that the state of Massachusetts has standing to challenge the Environmental Protection Agency’s denial of a petition to begin regulating “greenhouse gases.” Justice John Paul Stevens’s majority opinion further rules that the EPA unlawfully declined to exercise regulatory authority over such gases.

Chief Justice Roberts and Justice Scalia each write for the four dissenters. Roberts observes that the majority has no support for its claim that Massachusetts is “entitled to special solicitude” in the analysis of standing. Its status as a state, he explains, “cannot compensate for [its] failure to demonstrate injury in fact, causation, and redressability.” The majority having decided otherwise, Scalia disagrees with its assessment of the EPA’s action:

“The Court’s alarm over global warming may or may not be justified, but it ought not distort the outcome of this litigation. This is a straightforward administrative-law case, in which Congress has passed a malleable statute giving broad discretion, not to us but to an executive agency. No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency.”

2015—“Judicial-identity disorder” is a condition that afflicts judges who experience significant discontent with the role they were assigned when they took office. JID typically manifests itself in judicial decisions that are inconsistent with the judicial role and in behavior that reflects a severe and pervasive discomfort with neutrally applying the law. Unfortunately, no effective treatment for the condition is currently available.

Federal district judge Jon S. Tigar, appointed by President Obama in 2013 to the Northern District of California, quickly joins the ranks of judges manifesting symptoms of JID, as he issues an order ruling that a California prisoner, Jeffrey Norsworthy, is likely to succeed on the merits of his claim that prison officials have violated his Eighth Amendment rights by not providing him sex-reassignment surgery. Tigar orders the state to “take all of the actions reasonably necessary to provide Norsworthy sex reassignment surgery as promptly as possible.”

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