Dark money has sickening influence on Supreme Court’s EPA decision

It is not too much of a stretch to say that the U.S. Supreme Court acted like a subsidiary of Koch Industries when it stripped the Environmental Protection Agency of its ability to broadly regulate greenhouse gases. Last week’s decision, with inescapable implications for the entire field of government regulation, is the long-sought dividend for the billions of dollars in dark and disclosed campaign money that the nation’s oligarchs — the Kochs and many others — have for a half-century invested in owning the government and controlling the courts. Knowingly or not, the Federalist Society and the anti-abortion movement fronted for them.

It’s probably no accident of timing that the court majority saved the EPA’S emasculation for the last day of its term, after its radical repudiation of reproductive rights seized the nation’s attention. There is only so much that people can absorb at one time. The irony of the justices forcing fetuses to be carried to term in a world it has made less healthy for them seems to escape them.

The oligarchs whose wishes it fulfilled do not care much about abortion, but they welcomed the cover that issue provided for their long-term campaign to insulate their profits from government regulation.

A court disposed to take the nation back not simply to the 20th century but to the 19th — as it did in overturning Roe v. Wade — would also look favorably on returning to the age of the robber barons.

As bad as those two decisions are, it may get worse. The court accepted for next term an appeal from North Carolina Republican legislators who argue that no state courts can interfere with how legislatures deal with the election of U.S. senators and representatives. That would allow unrestrained partisan gerrymandering regardless of what state constitutions say.

The so-called independent legislature theory is based on a reading of the original Constitution that ignores the 14th amendment, which guarantees each citizen equal protection of the laws. Accepting the North Carolina appeal means at least four justices

It’s probably no accident of timing that the court majority saved the EPA’S emasculation for the last day of its term, after its radical repudiation of reproductive rights seized the nation’s attention. There is only so much that people can absorb at one time.

are sympathetic.

Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh said it is an important issue that the court should decide eventually. Many legal experts think it’s just crackpot theory.

The court itself has told federal courts to keep their hands off gerrymandering, except perhaps in racial cases, so state courts and constitutions are the only remaining bulwark between the people and an oligarchy.

Meanwhile, the public’s right to clean air and to an effective defense against global warming lies on the court’s cutting room floor.

This was judicial activism at its worst. The EPA had not activated the Clean Power Plan as allowed by a lower court decision. The Supreme Court should not have heard the case, but it was an opportunity not to be missed.

Chief Justice John Roberts, who advocated judicial restraint in the abortion case, had no use for it this time. His opinion in the 6-3 decision said the EPA lacked congressional authority to impose broad measures for reducing the proportion of electricity generated by coal.

Under a body of law known as the “major questions doctrine,” Roberts said, “Given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization.’ ”

Justice Elena Kagan’s dissent maintained that the Clean Air Act gives the EPA all the authority it needs to reduce greenhouse gases. Moreover, she said, the majority reached for a pretext. The court has “never even used the term ‘major questions doctrine’ before.”

Then she attacked the majority’s hypocrisy. Congress is neither equipped nor capable of legislating with specific precision on what regulatory agencies should do.

“First, members of Congress often don’t know enough — and know they don’t know enough — to regulate sensibly on an issue,” Kagan wrote for herself and Justices Sonia Sotomayor and Stephen Breyer. “Of course, members can and do provide overall direction. But then they rely, as all of us rely in our daily lives, on people with greater expertise and experience. Those people are found in agencies. Congress looks to them to make specific judgments about how to achieve its more general objectives.”

The court, she concluded, “appoints itself — instead of Congress or the expert agency — the decision maker on climate policy. I cannot think of many things more frightening.”

Circumstances change faster than Congress can keep up, even when it’s technically capable. Moreover, Washington abounds with lobbyists whose primary missions are to prevent congressional action. It’s always easier to kill bills than to pass them.

That’s what makes the defeat so stunning for the EPA, for the air we breathe, and for the dwindling prospects of controlling global warming before it’s too late. Every other major area of regulation is now in peril as well.

To paraphrase Kagan, there are few things more frightening than Supreme Court justices so drunk with the power they misuse.