ADVERTISEMENT

Excerpt from the book: The “Rule of Five” on Climate Change Debate in the Supreme Court

ADVERTISEMENT

ADVERTISEMENT

in his book “The Five Rule: The Making of Climate History in the Supreme Court” (Belknap Press), Harvard law professor Richard J. Lazarus writes about the most important environmental case decided by the nation’s highest court: whether the EPA has the authority to regulate greenhouse gas emissions from new cars — and whether The Federal Agency can be either. Forced to do so by nations affected by climate change.

Read the excerpt below, And don’t miss Ben Tracy’s interview with Lazarus “CBS Sunday Morning” April 17!


ADVERTISEMENT

Belkinab Press


ADVERTISEMENT

When Jim Milky started talking, those at the Supreme Court bar at the front of the courtroom moved very slightly forward in their seats, excited to see which judge would be the first to interrupt and ask a question. Most of them immediately looked at the known person with a smile similar to that of a Cheshire cat before ambushed his prey.

After all, Judge Antonin Scalia changed the oral argument. The number of questions asked by judges nearly doubled immediately after Scalia joined the court in September 1986, rising to an average of 104 questions per hour-long argument during Scalia’s first year. By 2005, the previous year Massachusetts That said, the average number of questions asked by judges swelled to a whopping 156.

From the moment he joined the court, Scalia announced his presence. During the first discussion on his first day on the podium, Scalia asked twenty-eight tough questions. During one two-week period in that Supreme Court, which runs from October to October, he asked 30 percent of all questions asked by the justices. On case after case, Scalia peppered the attorney with questions, leading Justice Lewis Powell, an old-school Virginian who was known for his polite demeanor, to taunt Justice Thurgood Marshall: “Do you think he knows the rest of us are here?”

As a former law professor at the Universities of Virginia and Chicago, known for his lively questioning of students in the classroom, aggressive questioning came naturally to Scalia. But this was more than just the judicial equivalent of chapter banter designed to ensure the full broadcast of the legal issues presented in the case. It was strategic.

* * * * *

There was nothing hidden about it. Scalia asked far more questions and far more difficult questions from the attorney arguing which side he expected to vote against than the side he expected to support. His thorny, and at times sarcastic, questions highlighted weaknesses in the lawyer’s argument. His highly charged theories often hung the polemicist’s answer in such a way that their legal position seemed absurd or tied them in any way. In the words of a former law clerk, who stole a line from one of the judge’s most famous dissenting opinions, “This wolf came as a wolf.”

When the counsel of Scalia’s preferred side rose to speak, the judge was either completely silent or asked questions designed only to reinforce the points the counsel was making. And if that attorney struggles to answer another judge’s questions or answer in a way that Scalia deemed problematic, Scalia will jump in to the attorney’s rescue, cutting off the bad answer by saying something like, “I would have thought your answer to this question was instead…,” followed by “Alice Is that right?” To which attorney, after finding out the apparent lifeline, would immediately reply: “It is absolutely true, Judge Scalia.”

Milky knew Judge Scalia would not be his friend on the morning of November 29. What he was going to throw down Milky Road won’t be a lifeline – more like grenades

* * * * *

Judge Scalia is expected to only take seconds to criticize Milky’s argument that Massachusetts The petitioners had the constitutionally required standing to bring a climate action in federal court. He asked nine questions about the standing case in quick succession, before any other judge had a chance to chime in. And Scalia never backed down. Soon every answer Milky attempted to give was interrupted by another question in Scalia’s barrage: Of the fifty-eight questions the judges asked Milky, Scalia asked twenty-three. His goal was clear: to discredit Milky’s claim that Massachusetts The petitioners had the right to sue in federal court for relief from the consequences of climate change.

Scalia began by asking Milky to prove that the damage Massachusetts would suffer was “imminent,” a critical component of standing up. He demanded to know “when” the damage would happen, sarcastically asking “When is the expected disaster?”

The question, and its tone of delivery, left little doubt in Scalia’s contempt for scientific predictions of the dire consequences of climate change. He then directly questioned whether there was scientific consensus on climate change, and drew a distinction between whether climate change was occurring, which seemed to acknowledge the possibility of a consensus, and whether it could be attributed to human activity, about which he suggested there was no “consensus”.

* * * * *

Scalia’s questions were clever. They offered Milky rhetorical traps to navigate, and the speech-savvy Justice was willing to take advantage of the slightest hint of error. There was no better justice than Scalia in fervently pretending how the lawyer’s answer proved to be too little, too much, or nothing at all.

* * * * *

In anticipation of precisely this challenge, Milky jotted down some coded notes in a long line earlier that morning, which he had brought into the courtroom and placed on top of all his other notes. They were simple and direct warnings to himself:

  • No wind or stuffing
  • Committed to the path
  • back on track
  • answer for? Requested
  • eye contact
  • time = your enemy

Milkey stands before the actual judges. Failed moot courts were a thing of the past. Milky sidesteps each of Scalia’s 23 questions with direct, concise, and responsive answers. Maintain a clear thesis and stick to it in a respectful, credible and compelling manner. Constant guesswork, a torrent of skeptical questions during moot courts, and seemingly endless debates within the CO2 Warriors about what they should and shouldn’t argue with have given him the knowledge he now needs to speak directly and with conviction. The brutal moot courts have prompted him to attack pointed questions, more than any other case he has argued in his decades as a lawyer.

* * * * *

Justice Scalia attempted for the last time a clean blow by questioning Milky about the validity of his seeming assumption that there is a “straight line ratio” between reductions in greenhouse gas emissions and reductions in climate change damage. Milky’s response was the Supreme Court attorney’s equivalent of the boxer’s knockout punch. He turned the momentum of Scalia’s attack in his direction, landing a blow in favor of Massachusetts.

Milky explained that he wasn’t assuming a linear relationship, but in fact, the lack of linearity meant that Massachusetts could suffer. morenot lessDamage and damage. He backed this up with specific examples of Massachusetts and New York, examples that were easily accessible to non-scholars such as judges and in the case record.

* * * * *

Not one to give up easily, Scalia tried to deal one last blow to the enduring cause. Melcke has pushed again on whether the damage can really be considered “imminent,” given the number of decades that will pass between the time when greenhouse gases are released into the atmosphere and the time these additional greenhouse gases cause damage. This time, Milky replied succinctly Zinger: “Your Majesty, once the laws of physics come into play, our damage is imminent in the sense that igniting a fuse on a bomb is imminent damage.” With a simple example, every day, Milky explained what the threat could be both at the same time and in the future.

From “The Rule of Five: The Making of Climate History in the Supreme Court” by Richard J. Lazarus. © 2020 by Richard J. Lazarus. Excerpted reprinted with permission from Harvard University Press’s Belknap Press. All rights reserved.


for further information:

ADVERTISEMENT

Leave a Comment

ADVERTISEMENT
ADVERTISEMENT