IS THE GREEN NEW DEAL DEAD ON ARRIVAL? THE CASE FOR “JUSTICE-PROOFING” PROGRESSIVE CLIMATE LEGISLATION IN THE NEW ACB-ERA

By: Alexandria Dolezal, Volume 105 Staff Member

On September 18, 2020, Justice Ruth Bader Ginsburg died at age 87, after a long battle with pancreatic cancer.[1] Days before her death she communicated to her granddaughter that her “most fervent wish [was] that [she] not be replaced until a new president is installed.”[2] That wish did not come true, when a little over five weeks after Justice Ginsburg’s death, and just eight days before the presidential election, Amy Coney Barrett, a 48-year-old federal appeals court judge from Indiana, was confirmed to the Supreme Court without a single Democratic vote in her favor.[3] Justice Barrett’s confirmation cemented a conservative majority on the Supreme Court, and sparked a frenzy of conversation about what this will mean for the future of progressive policies,[4] among them efforts to address climate change like the “Green New Deal.”[5]

I. THE GREEN NEW DEAL: A BRIEF HISTORY

Introduced by Representative Alexandria Ocasio-Cortez of New York and Senator Edward J. Markey of Massachusetts, the Green New Deal is a congressional resolution that calls for the federal government to tackle climate change by transitioning off of fossil fuels to renewable energy sources, guaranteeing high-paying jobs in the clean energy sector, and achieving net-zero emissions by the year 2050.[6] The Green New Deal takes inspiration from a series of government programs instituted by President Franklin D. Roosevelt to help the United States recover from the Great Depression, known as the New Deal.[7] The proposal calls on the federal government to invest in projects and policies that would dramatically reduce greenhouse gas emissions and impact the way we regulate industries and conduct our daily lives.[8] During his presidential campaign, President-Elect Joe Biden, took inspiration from the Green New Deal in crafting his own climate agenda.[9] Though President-Elect Biden’s legislative plan excludes some of the more controversial policies of the original Green New Deal,[10] it still calls for dramatically reducing emissions and reaching a carbon-neutral energy sector by 2035 through extensive investment in renewable infrastructure, while also addressing racial and economic inequities, and protecting vulnerable ecosystems.[11]

II. THE ROLE OF THE COURT IN PROGRESSIVE CLIMATE LEGISLATION

A. What’s at Risk for the Green New Deal?

            The Supreme Court’s move to the right with the confirmation of Justice Barrett increases the likelihood that Green New Deal style initiatives will be blocked, spelling trouble for the future of the Biden climate agenda.[12] A more conservative Court could impose barriers on agencies’ ability to enact the policies set out in such a bill by narrowly interpreting the powers granted to the agency,[13] or limiting Chevron deference.[14] With this shift in the ideological makeup of the Court looming large on American society, many legal scholars, politicians, and journalist have described a series of court reforms that could fundamentally reframe the power structure of the Supreme Court and limit its ability to frustrate progressive policies like the Green New Deal.[15]

B. So How Do We Reform the Court?

While “court packing”[16] is a commonly discussed solution that has gotten a lot of attention recently,[17] this idea has long received criticism from politicians and scholars on both sides of the aisle.[18] When President Roosevelt announced a plan to add Justices to the Supreme Court in 1937, the Court finally began upholding New Deal policies, bringing about the end of the infamous “Lochner era.”[19] Though this may demonstrate the potential power of a credible threat to expand the Court, it is notable that Roosevelt’s plan still failed in Congress and arguably damaged his reputation.[20]

As an alternative, others have called for the imposition of term limits on the Justices.[21] But not only would this require a constitutional amendment, in all likelihood it would not change the composition of the current Court,[22] making such a solution unlikely to further a progressive climate agenda under President-Elect Biden. Another class of proposed solutions which could prove more beneficial to a Green New Deal involve reforms that disempower the Court, such as legislative override, a supermajority rule,[23] and jurisdiction-stripping.[24] Such reforms could help Congress to limit the Supreme Court’s power to weigh-in on issues which arise under such a statute or concern certain climate-related topics. The Supreme Court has argued that “substantial constitutional questions” would be raised if judicial review is unavailable for constitutional claims,[25] but in the past bills have been introduced that involved jurisdiction-stripping on controversial issues such as racial discrimination, free speech, abortion, school prayer, gay marriage, and environmental preservation, to varying levels of success.[26] Further, because disempowering reforms effectively reassign power from the courts to the other political branches, such reforms potentially increase the stakes of congressional and presidential elections;[27] arguably a preferable outcome from the viewpoint of democratic accountability.[28]

C. Does Court Reform Provide any Hope?

These Court reform options would require a majority of the Senate vote, and current hopes for a Democratic majority rest on two run-off elections in Georgia.[29] However, research has demonstrated the impact of public support for curbing the power of the Supreme Court, even when reforms have failed to achieve the force of law. It has been found that in the past when Congress has introduced a greater number of bills that would have limited the Court’s power, the Court has responded by invalidating fewer laws;[30] supporting the theory that even though such “court-curbing bills” have rarely become law, they have still functioned to signal to the Court that it has gone too far.[31] Without the insolation of a conservative president and House, there is still a possibility that the Supreme Court could lay low under a Biden presidency, avoiding extremely controversial cases or opinions that could spark public outrage and political backlash.

Perhaps an even more important issue, is whether President-Elect Biden will be able to pass any semblance of a Green New Deal at all without Democratic control of the Senate. This seems highly unlikely with a divided government and points to a future where President-Elect Biden will be limited to executive action for at least the first two years of his term.[32]

CONCLUSION

Without Congressional support for sweeping judicial disempowerment, such reforms are dead on arrival to the floor of the Senate. Until the results of the Georgia run-off elections are in, and it becomes clear which party will hold the majority in the Senate, supporters of the Green New Deal will be left waiting with bated breath. In the meantime, hopefully the Biden Administration is drafting creative policy agendas that have the potential to garner bipartisan support, and executive orders that would begin to undo the environmental damage of the current administration’s deregulatory agenda. While dreams of sweeping “green spending” will remain just that, all hope is not lost just yet.

 

[1] Nina Totenburg. Justice Ruth Bader Ginsburg, Champion of Gender Equality, Dies at 87, NPR (Sept. 18, 2020, 7:28 PM), https://www.npr.org/2020/09/18/100306972/justice-ruth-bader-ginsburg-champion-of-gender-equality-dies-at-87 [https://perma.cc/H3U5-LVDS].

[2] Id.

[3] Lisa Mascaro, Barrett confirmed as Supreme Court justice in partisan vote, AP News (Oct. 26, 2020), https://apnews.com/article/82a02a618343c98b80ca2b6bf9eafe07 (noting that Justice Barrett’s confirmation on October 26, 2020 was the closest a U.S. Supreme Court confirmation has ever taken place to a presidential election).

[4] Adam Liptak, Barrett’s Record: A Conservative Who Would Push the Supreme Court to the Right, N.Y. Times (Sept. 26, 2020), https://www.nytimes.com/article/amy-barrett-views-issues.html [https://perma.cc/HMG4-US4H].

[5] See Alex Guillén & Paul Demko, How the new Supreme Court could stymie a Biden presidency, Politico (Sept. 25, 2020, 6:16 PM), https://www.politico.com/news/2020/09/25/supreme-court-regulations-biden-421934 [https://perma.cc/Q4HY-3ZMA]; John Schwartz & Hiroko Tabuchi, By Calling Climate Change ‘Controversial,’ Barrett Created Controversy, N.Y. Times (Oct. 15, 2020), https://www.nytimes.com/2020/10/15/climate/amy-coney-barrett-climate-change.html [https://perma.cc/NY6V-MXXT].

[6] Lisa Friedman, What Is the Green New Deal? A Climate Proposal, Explained, N.Y. Times (Feb. 21, 2019), https://www.nytimes.com/2019/02/21/climate/green-new-deal-question-answers.html [https://perma.cc/2HTX-2L3T].

[7] Id.

[8] Id.

[9] Spencer Bokat-Lindell, Could Biden Be the Climate Change President?, N.Y. TIMES (Jul. 21, 2020), https://www.nytimes.com/2020/07/21/opinion/biden-climate-change.html [https://perma.cc/W58Z-SQN7].

[10] Jordan Weissmann, Joe Biden Is Campaigning on the Green New Deal, Minus the Crazy, Slate (Jul. 15, 2020, 3:21 PM), https://slate.com/business/2020/07/joe-bidens-climate-plan-is-the-green-new-deal-minus-the-crazy.html [https://perma.cc/PLN9-HPJ7] (noting that Biden’s climate plan does not include “Medicare for all,” or a federal jobs guarantee).

[11] See Bokat-Lindell, supra note 9; Weissmann, supra note 10.

[12] See Kelsey Tamborrino, What Amy Coney Barrett could mean for climate law, Politico (Sept. 28, 2020, 6:57 PM), https://www.politico.com/newsletters/morning-energy/2020/09/28/what-amy-coney-barrett-could-mean-for-climate-law-790641 [https://perma.cc/8UUL-WS9C]; Guillén & Demko, supra note 5.

[13] See Guillén & Demko, supra note 5. See generally J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928).

[14] See Guillén & Demko, supra note 5. See generally Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

[15] See, e.g., Press Release, Ro Khanna, Congressman, Rep. Ro Khanna Proposes Supreme Court Term Limits, Appointments Schedule, Without Constitutional Amendment (Sept. 25, 2020), https://khanna.house.gov/media/press-releases/release-rep-ro-khanna-proposes-supreme-court-term-limits-appointments-schedule [https://perma.cc/GSK8-EGLW]; Ryan D. Doerfler & Samuel Moyn, Democratizing the Supreme Court, 109 Calif. L. Rev. (forthcoming 2021), available at

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3665032; Bruce Ackerman, Three ways to fortify the Supreme Court, L.A. Times, (Dec. 27, 2018), https://herald-review.com/opinion/columnists/bruce-ackerman-three-ways-to-fortify-supreme-court/article_e3f917cf-d580-51da-a8a9-d31de68dd4d0.html [https://perma.cc/34GJ-9DAM]; Ezra Klein, How to fix the Supreme Court, Vox (Jun. 27, 2018, 4:11 PM), https://www.vox.com/policy-and-politics/2017/4/14/15295474/anthony-kennedy-retirement-replacement-nomination-supreme-court.

[16] Amber Phillips, What is court packing, and why are some Democrats seriously considering it?, Wash. Post (Sept. 22, 2020), https://www.washingtonpost.com/politics/2020/09/22/packing-supreme-court/ [https://perma.cc/WBN9-UD6C] (defining “court-packing” as expanding the number of Justices on the bench by passing a law).

[17] See, e.g., Ackerman, supra note 15 (advocating for two seven-Justice chambers); Phillips, supra note 16. (explaining the history of court-packing, and why is has sparked Democratic interest).

[18] See, e.g., Veronica Stracqualursi, Centrist Democrat says he won’t back expanding Supreme Court, CNN (Nov. 10, 2020, 10:50 AM), https://www.cnn.com/2020/11/10/politics/joe-manchin-supreme-court-packing-cnntv/index.html [https://perma.cc/352U-3546] (Sen. Joe Manchin, a centrist Democrat from West Virginia, has stated that he would not vote for packing the courts); Jemima McEvoy, Senate Republicans To Propose Constitutional Amendment Banning ‘Court-Packing’, Forbes (Oct. 19, 2020, 2:11 PM), https://www.forbes.com/sites/jemimamcevoy/2020/10/19/senate-republicans-to-propose-constitutional-amendment-banning-court-packing/?sh=7a4524401579 [https://perma.cc/24CH-W3N6 ] (explaining that a coalition of GOP senators are advocating for a constitutional amendment to prevent the Democrats from increasing the number of justices on the Supreme Court); Ryan D. Doerfler & Samuel Moyn, Reform the Court, but Don’t Pack It, Atlantic (Aug. 8, 2020), https://www.theatlantic.com/ideas/archive/2020/08/reform-the-court-but-dont-pack-it/614986/ [https://perma.cc/7Y9G-L65X] (discussing the “radioactive” reaction to FDR’s court-packing scheme, and the potential blowback from this type of reform); Doerfler & Moyn, supra note 15, at 63 (explaining that to ensure the long term survival of progressive legislative agendas under a scheme of judicial expansion, progressives would need to maintain control of the presidency and chambers of Congress repeatedly for the foreseeable future).

[19] Sujit Choudhry, The Lochner era and comparative constitutionalism, 2 Int’l J. Const. L. 1, 14 (2004); Amelia Thomson-DeVeaux, Who Can Stop the Supreme Court?, FiveThirtyEight (Oct. 15, 2018, 6:01 AM), https://fivethirtyeight.com/features/who-can-stop-the-supreme-court/ [https://perma.cc/9UP3-ZPP2].

[20] See Jamie L. Carson & Benjamin A. Kleinerman, A switch in time saves nine: Institutions, strategic actors, and FDR’s court-packing plan, 113 Public Choice 301, 301–02 (2002).

[21] See, e.g., Khanna, supra note 15; Ackerman, supra note 15; Klein, supra note 15; Roger C. Cramton, Reforming the Supreme Court, 95 Calif. L. Rev. 1313 (2007); Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 Harv. J. L. & Pub. Pol’y 769 (2006).

[22] Doerfler & Moyn, supra note 15, at 53, 63; Calabresi & Lindgren, supra note 21, at 772–73.

[23] Doerfler & Moyn, supra note 15, at 24–25 (explaining that some reformers have proposed letting Congress override Supreme Court judgements with a majority or supermajority vote, or by instituting a legislative override that would treat such judgments as being limited to involved parties).

[24] See Doerfler & Moyn, supra note 15, at 63–64. See generally Janet Cooper Alexander, Jurisdiction-Stripping in a Time of Terror, 95 Calif. L. Rev. 1193 (2007) (describing Congress’s application of jurisdiction-stripping during the Bush era).

[25] Alexander, supra note 24, at 1193–94; see, e.g., INS v. St. Cyr, 533 U.S. 289 (2001); Webster v. Doe, 486 U.S. 592 (1988); Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667 (1986); Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984).

[26] See Alexander, supra note 24, at 1193; see also Sarah Herman Peck, Cong. Research Serv., R44967, Congress’s Power over Courts: Jurisdiction Stripping and the Rule of Klein 19–20 (2018) (describing how in Patchak v. Zinke a plurality of the Supreme Court held that the jurisdiction-stripping provision in question did not violate Article III of the Constitution, because “[b]efore the Gun Lake Act, federal courts had jurisdiction to hear these actions. Now they do not. This kind of legal change is well within Congress’ authority and does not violate Article III.”).

[27] Doerfler & Moyn, supra note 15, at 18.

[28] Id. at 23–24 (discussing that policy outcomes would depend “entirely and predictably” on elections under jurisdiction-stripping reforms).

[29] Nathaniel Rakich & Geoffrey Skelley, Georgia’s Runoffs Will Determine Control Of The Senate. Here’s What We Know So Far., FiveThirtyEight (Nov. 11, 2020, 6:00 AM), https://fivethirtyeight.com/features/georgias-runoffs-will-determine-control-of-the-senate-heres-what-we-know-so-far/ [https://perma.cc/T7QP-HFPH].

[30] Tom S. Clark, The Separation of Powers, Court Curbing, and Judicial Legitimacy, 53 Am. J. Political Science 971 (2009) (“When Congress is hostile, the Court uses judicial review to invalidate Acts of Congress less frequently than when Congress is not hostile towards the Court.”).

[31] Id.; Thomson-DeVeaux, supra note 19.

[32] See, e.g., David Roberts, Joe Biden will be president, but there will be no Green New Deal, Vox, (Nov. 6, 2020, 10:00 AM), https://www.vox.com/energy-and-environment/21547245/joe-biden-wins-2020-climate-change-clean-energy-policy; Brentan Alexander, The Green New Deal Is Dead In A Republican Senate, But Biden Has Options To Fight Climate Change, Forbes, (Nov. 8, 2020, 4:12 PM), https://www.forbes.com/sites/brentanalexander/2020/11/08/the-green-new-deal-is-dead-in-a-republican-senate-but-biden-has-options-to-fight-climate-change/?sh=336b21bb12dd [https://perma.cc/ZA4H-B3E3].