In a Stunning Critique, Ketanji Brown Jackson Nails One of This Court's Worst Traits
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In an extraordinary and unusual dissent on Friday, Justice Ketanji Brown Jackson issued a stark warning to the nation: The Supreme Court is favoring “moneyed interests” over all other parties, contorting the law to favor big business while locking the most vulnerable out of court.
Jackson's remarkable opinion was a protest against the court's decision in Diamond Alternative Energy v. EPA , a case brought by the fossil fuel industry to weaken environmental protections. The Environmental Protection Agency allowed California to set higher emissions standards than the rest of the nation via a series of waivers; in response, gas producers sought to challenge those waivers. They did so despite the fact that Congress expressly allowed the EPA to grant those waivers in the Clean Air Act, and automakers—the actual parties facing California's regulations—declined to challenge them. But gasoline companies did instead, arguing that they had constitutional standing to sue because they suffer economic harm when people buy less gas.
This theory is, at best, dubious, particularly since these companies failed to prove that it was the EPA that caused them concrete harm. (There are many other factors pushing consumers toward more-efficient cars and electric vehicles.) Besides, the case appears to be on the brink of irrelevance: Donald Trump's EPA seeks to repeal California's waivers anyway, and the president recently signed a measure enacted by Congress that would nullify them. Yet the Supreme Court plowed ahead, ruling on Friday, in a 7–2 vote, that gas companies have standing to sue. In his majority opinion, Justice Brett Kavanaugh relied upon “commonsense inferences” about “economic principles” to conclude that the waivers will push automakers to sell more-efficient cars and incentivize consumers to buy those vehicles, resulting in their spending less money on gas. So gas companies suffer harm via “downstream” economic pain that qualifies as a constitutional injury.
Both Jackson and Justice Sonia Sotomayor dissent. (Justice Elena Kagan signed on to Kavanaugh's opinion for the court—perhaps in part to build goodwill among the conservatives.) In separate opinions, the dissenters argued that the court should not have decided the case at all. Sotomayor's dissent was brief and temperate; Jackson's was lengthy and furious. The court's newest justice attacked the majority's reliance on “commonsense intuitions” to establish standing, arguing that the court's musings about the economics of the auto market are not bound out by facts in the record. And she criticized the majority for deciding the case when it is almost certainly about becoming moot anyway.
But Jackson went much further, casting her colleagues for twisting the usual rules of standing to benefit fossil fuel companies and corporate interests more broadly. “Our ruling will no doubt aid future attempts by the fuel industry to attack the Clean Air Act,” the justice wrote. “I worry that the fuel industry's gain comes at a reputational cost for this court, which is already viewed by many as being overly sympathetic to corporate interests.” For support, she cited a number of articles documenting this pattern beyond any doubt. Some “knowledgeable researchers,” Jackson noted, “have suggested that this reputation is unfounded. But, at this point, that unfortunate perception seems pervasive.” And “even the mere appearance of favoritism” can “undermine confidence in the integrity of the judiciary.”
The majority's insistence on delivering a victory to gas companies here, Jackson continued, “will only harden” critics' sense that SCOTUS changes the rules “when evaluating petitions from moneyed interests.” And, she wrote, “this court's simultaneous aversion to hearing cases involving the potential vindication of the rights of less powerful litigants—workers, criminal defendants, and the condemned, among others—will further fortify that impression.”
Jackson then walked through a series of civil rights cases in which the Supreme Court denied standing to plaintiffs with far stronger claims than the gas companies here. “The Court's remarkably lenient approach to standing in this case,” she warned, “contrasts starkly with the stern stance it has taken in cases concerning the rights of ordinary citizens.” Victims of racial discrimination and warrantless wiretapping , for instance, have been booted out of court for lack of standing. And yet, time and time again, powerful corporations have been allowed to pursue their cases, often all the way to a victory, with the feeblest claims of harm. Jackson concluded by invoking the phrase etched into the front of the Supreme Court building:
It is easy to deprecate the single phrase inscribed atop the entrance to our courthouse by conceptualizing it as a mere platitude. But “Equal Justice Under Law” remains this court's guiding light nearly a century after those words were first engraved there. Striving to embody that particular ideal is what distinguishes our work as judges from that of the well-heeled lawyers and lobbyists who walk into similarly ornate buildings every day to promote the interests of their clients. …Those of us who are privileged to work inside the court must not lose sight of this institution's unique mission and responsibility: to rule without fear or favor. If the court privileges the interests of one class of litigants over others, even unintentionally, it can damage Americans' faith in an impartial Judiciary and undermine the long-term credibility of its judgments.
These are fighting words, and we can safely assume that Jackson does not use them lightly. She is not only admonishing her colleagues for favoring wealthy parties over everyday Americans. She is alerting all of us to this corruption of justice and inviting us to join in her critique. The notion that SCOTUS has an entrenched bias toward big business has now been endorsed by a sitting justice.
It is no surprise that Sotomayor did not join Jackson's dissent; despite her reputation as a liberal firebrand, Sotomayor is more compromised-minded than is Jackson, arguably more willing to pull punches in the service of building a coalition with her conservative colleagues in future cases. Here, Jackson has clearly decided that the time for compromise is over and the need for truth-telling is too urgent to ignore. As the court winds up its term in the following days, Jackson's dissent may well start to look like a dark warning of further favoritism yet to come.
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