Ask Mr. Roberts

05/25/2011 11:55 am ET
  • Carl Pope Former executive director and chairman, Sierra Club

Washington, DC -- We appear to be witnessing the disintegration of one of our government's three branches -- the Supreme Court. Again, yesterday, the court failed to assemble anything like a majority, this time on a critical campaign-finance case from Vermont. Scalia and Thomas repeated their argument that any form of limitation on campaign-finance contributions is unconstitutional -- an argument that, taken seriously, would also throw out most laws on corruption and bribery. Souter, Ginsburg, and Stevens suggested that the Court should have allowed the Vermont law -- which limited campaign spending as well as contributions -- to serve as the basis for revisiting the 1974 decision that prohibited campaign-spending limits. And three justices -- Roberts, Breyer, and Alito -- said that although some contribution limits were allowable, Vermont's $400 figure was too low, and that campaign spending -- well, that just can't be restricted.

Only a week ago, the Court similarly split over the interpretation of the Clean Water Act. In that case, the final decision reflected the views of only one justice: Kennedy. The week before, a Fourth Amendment case on search and seizure produced a similar "Kennedy makes the law" outcome. In this week's campaign-finance case, three Justices have now determined the fundamental rules that govern American politics.

There simply doesn't seem to be a center in the Roberts Court. The Chief Justice himself has said that it's much harder to achieve unanimity if Justices write overly broad opinions and fail to defer to precedent. But he seems erratic in following his own advice. In the Clean Water case, he joined what was clearly an overly broad attack by Scalia, and in the earlier search and seizure case, he similarly overreached. In the Vermont campaign finance case, Roberts did opt to respect precedent and decide the case on the narrowest grounds available, but Scalia, Thomas, and Kennedy wouldn't join him.

That makes the Court's decision yesterday to take up an appeal on whether EPA must, could, or cannot regulate carbon dioxide as a pollutant under the Clean Air Act a particularly anxious one. The Clean Air Act says that EPA "shall" establish air quality standards for pollutants that, among other things, have an adverse effect on the climate. But the EPA has refused to regulate CO2 under that authority.

When the Sierra Club joined other environmental groups and several states in demanding that the EPA act, the DC Circuit Court split three ways; one judge said regulation was mandatory, one that it was optional, and one that the states and environmentalists lacked the standing to bring the suit. No judge ruled for the fourth possible outcome, which would be to decide that CO2 is not a pollutant and that the EPA cannot regulate it. (That's the position being taken by the auto industry.) Give a Supreme Court that is this divided an already splintered Appellate Court decision to wrestle with (especially one in which there are not two, but four, possible outcomes), and the possibilities for chaos seem limitless.