May 1, 2014

We live in “gotcha” times! Two comments made by prominent Republicans—one a Senator, and the other a judge—prompted my focus, although in any other week—or with several others during this week—the “gotcha” moments could have featured others.

Senator Mitch McConnell from Kentucky, the Senate Minority Leader whose party may take back the Senate this fall, while he finds himself involuntarily retired, said “that is not my job,” when asked what he would do bring jobs to a struggling county in Kentucky. Outrage, of course, ensued, with the editor who ran the story asserting that “he said that, and I swear those were his words,” and Senator McConnell offering a load of pablum about everyone’s responsibility for jobs, economic development, blah, blah, blah.

Senator McConnell surely committed political malpractice, and it’s certainly fair to question his commitment to jobs and those who are struggling. That all said, what exactly does anyone expect a U.S. Senator to do about job growth, or even the Senate or the federal government? Yes, government policies surely affect the economy, but does anyone expect a real and complete answer to that question. No! The whole exercise involves pandering, and old Mitch McConnell forgot that fact for a moment.

The other gotcha really matters. In Environmental Protection Agency v. EME Homer City Generation, Nos. 12-1182 and -1183, the U.S. Supreme Court upheld the EPA’s application of regulations dealing with ambient air quality standards. The vote was 6-2, with Justice Ruth Bader Ginsburg writing for the majority, Justice Antonin Scalia writing for himself and Justice Clarence Thomas, and Justice Samuel Alito recused.

The case matters because, a time when environmental standards fare poorly before the Court, a majority agreed with the EPA’s cost effective allocation approach. Alas, that’s not why I mention the case (although it would be a plenty good reason). I write, instead, because the original dissent included language in which Justice Scalia referred to the government once again trying to use a cost-benefit analysis approach in enforcing the Clean Air Act. In support of his position he cited to Whitman v. American Trucking Associations, Inc., a 9-0 decision in which the authored the Court’s opinion, and in which not the government but the truckers argued for the cost-benefit approach.

The matter has been cleaned up, quietly, with a revision to the dissent. No, the dissent was not withdrawn, and Justices Scalia and Thomas did not change their minds. (Both were part of the 9-0 decision in the earlier case.) Language was simply changed.

Worst thing ever? No. Surprising? Yes, as justices have clerks and they all get paychecks with the expectation that they will get it right. But, and here’s the point, we have two justices for whom precedents appear to be nothing more than tools to support this position or that. I was struck, when I started reading about this fiasco, that I have often started a brief by making an argument, only to find I cannot support it, or that making the argument lessens some other aspect of my client’s case. And out goes the argument! The same goes for cited authorities:  sometimes a case looks good today and not so good tomorrow. And sometimes I get it wrong! But … and it’s a big but, I am advocating for my side. I am not one of nine people entrusted with interpreting our nation’s laws. I get to start with a position and find support. Justice Scalia and his fellow justices have as their task letting the authorities take them to a position!!!

P.S. I’m not naïve about how the Court works. But, as Chicago Mayor Rahm Emanuel says often (he’s probably not the person who first made the observation, but he gets the credit):  “Don’t let a crisis go to waste.” The Republic will hold together, but Justice Scalia’s flub highlights a focus on result-oriented decision-making.


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