One of the points I’ve made several times on this blog is that, for all the times liberal or progressive judges are accused of “judicial activism,” many “conservative” judges (usually members of the misleadingly-named The Federalist Society) are more than happy to ignore their own claimed principles of judicial restraint when it serves their purposes. Justice Scalia has made a habit out of it, completely ignoring his own “textualism” and “originalist” approach when it suits his political purposes, while other Judges content themselves to sporadic outbursts of judicial activism when the stakes are high. I gave an example of conservative judicial activism three years ago when the United States Court of Appeals for the District of Columbia ignored several recent Department of Defense regulations, a sixty-year-old Act of Congress, and a basic principle of federalism to dismiss lawsuits brought by more than a dozen Iraqis who were “beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused” by private contractors working as interpreters and interrogators at Abu Ghraib prison.
This week, another example jumped into the public consciousness, when Washington Post columnist Steven Pearlstein wrote about “The judicial jihad against the regulatory state,” using the recent Homer City Generation v. EPA opinion written by Judge Brett Kavanaugh, who was appointed to the court by President George W. Bush after serving the Republican Party to help impeach Bill Clinton and to fight Bush v. Gore in 2000. The American Constitution Society’s blog chimes in with another example of Judge Kavanaugh attacking the Environmental Protection Agency (and, to be fair, with a counterexample of Judge Kavanaugh blocking the State of South Carolina from implementing its “Voter ID law,” apparently another disenfranchisement tool like Pennsylvania’s Voter ID law). Ed Whelan at National Review Online attempted a tepid defense of Judge Kavanaugh’s opinion, but in the end he merely parroted Judge Kavanaugh’s own assertion that he was following the will of Congress.
Now on to Homer City Generation v. EPA. The case involves the EPA’s attempt to implement the Clean Air Act, specifically the parts relating to upwind States’ obligations to ameliorate pollution to downwind States. Despite the length of the opinion (60 pages) and the dissent (another 44 pages), and the case’s tortured procedural history, the case isn’t that complicated. As you read it, bear one important principle of federalism in mind: the Supreme Court has held that if a statute is “silent or ambiguous with respect to the specific issue,” and if “the agency’s answer is based on a permissible construction of the statute,” a court must defer to the agency’s interpretation.” Chevron U.S.A. v. Natural Resources Def. Council, 467 U.S. 837, 843 (1984). Judicial deference to agencies is one of the key components of our federal system today, and it is regularly used to dismiss challenges to federal agency actions.