The left is having a terrible day today at the Supreme Court, where two cases the left had held out high hope for went down in flames in unanimous decisions (so they can’t complain about the usual 5 – 4 conservative-liberal split).
The first is a delicious case of environmentalists being hoist by their own petard. In American Electric Power v. Connecticut, the Court ruled 8 – 0 (with Sotomayor recusing) that environmentalists cannot bring a common law nuisance suit against power plants for greenhouse gas emissions because such suits have been pre-empted by the Clean Air Act and EPA regulation, which of course was the result of an earlier successful environment lawsuit, Massachusetts v. EPA in 2007. So now we have environmentalist lawsuits colliding with one another and tripping over their own political and legal incoherence.
The second unanimous rebuke is the case of WalMart v. Dukes, where the Court reversed a decision of the Ninth Circus Court of Appeals (as Rush Limbaugh refers to that notoriously out of control appellate circuit) granting class action status to women charging employment discrimination against the retail giant. Trial lawyers had been salivating at the settlement and/or trial prospects for this one.
Another unanimous case last week also deserves attention for what it might say about Justice Kennedy’s inclinations about the inevitable Obamacare case that is on its way to the high court: Bond v. U.S. The Bond case involved a garden variety attempted murder in Pennsylvania that somehow ended up as a federal case involving post-9/11 terrorism statutes. The Court ruled unanimously again, with Kennedy writing the opinion that Congress exceeded its constitutional authority in enacting the statute under which the defendant was indicted. There’s lots of encouraging language in Kennedy’s opinion about the virtue of federalism, and respect for the 10th Amendment. Justice Kennedy also seems willing, as he did in Citizens United, to wrestle to the ground several older precedents of dubious reasoning or applicability to new circumstances. Lefties who pin their hopes on Kennedy being the bulwark against the Obamacare individual mandate challenge should be nervous. (Hat tip: AMF.)
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