The Climate Movement Can’t Count on a Conservative Judiciary

Last week, a majority of judges on a Ninth Circuit Court of Appeals panel dismissed the youth climate case Juliana v. United States. Though the youth plaintiffs and their attorneys impressively and valiantly presented a compelling legal theory and achieved historic victories in the District Court of Oregon, it was always probable that at some point, a conservative judiciary was going to quash this effort. This article takes a brief look into the rationale for the Ninth Circuit’s dismissal and provides an argument as to why the judiciary is unlikely to issue climate-protective decisions without a major progressive political shift in the federal government of the United States.

The Court of Appeals Ruling

For those unfamiliar with the case, the youth plaintiffs’ legal theory is that climate change is actively being caused by the United States government and already depriving youth of Constitutional protections. The youth assert a new formulation of Constitutional rights to life, liberty, property, and a climate capable of sustaining civilization that arise out of the 5th, 9th, and 14th Amendments to the United States Constitution. As summarized by the majority, the plaintiffs further argue that “[t]he government affirmatively promotes fossil fuel use in a host of ways, including beneficial tax provisions, permits for imports and exports, subsidies for domestic and overseas projects, and leases for fuel extraction on federal land.” (Opinion, p. 15 – 16). It follows that if the courts were to enjoin the government from engaging in behavior that is fueling the climate crisis, they would be protecting the rights of the youth.

Despite agreement from the majority and the government defendants about nearly all of the factual assertions of the plaintiffs, the panel still opted for dismissal because they believe that to rule for youth would require courts to engage in policy making, concluding:

it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiff’s remedial plan. As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches. (Opinion, p. 25).

Importantly, Judge Staton dissented from the majority opinion, essentially accusing the majority of coming to an absurd result, writing:

the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation. My colleagues throw up their hands, concluding that this case presents nothing fit for the judiciary. (Opinion, p. 33).

The entire opinion plus dissent is well worth reading, but the technical legal nature of the dismissal is less important than the political economy of the judiciary, which creates a highly unfavorable terrain for cases demanding substantial action to mitigate climate change.

Beyond Legalese to Political Economy

I argue that we should assess “the law” primarily in terms of political economy. The law is largely not about abstract principles of justice or courageous decision making by individual judges. Instead, it is a political institution that is shaped by, reflects, and protects the interests and ideologies of the dominant forces in society. The federal judiciary is straightforwardly political in that its members are appointed directly by political actors. Thus, we should expect the interests of power to be reflected in legal decision making in the federal courts.

The present political-economic situation in the United States has been shaped by the effects of a 40-year long far-right political revolution that conquered the political landscape and moved both major American political parties well to the right. The history of this political reaction is enormously important to understand, but there isn’t space here to describe it in detail (further reading). The result has been the proliferation of organized and well-funded right wing institutions and politicians who have zealously promoted competition, austerity, a reduction in democracy, and the upward transfer of societal wealth into private hands. The shorthand for this enormously successful political project is “neoliberalism” and it coincided with the mass destruction of ecological systems at exactly the time when our civilization needed to be reining itself in. In fact, the early successes of the environmental movement were in part responsible for corporate actors banding together and creating the institutions that spurred the neoliberal revolution (further reading).

With control of politics comes the ability to appoint federal judges who share the neoliberal worldview. Mitch McConnell has been enormously successful in packing the judiciary with young arch-conservative zealots who will be issuing decisions for decades to come, including recently securing a conservative majority Supreme Court with the scandalous appointment of Brett Kavanaugh.

In short, the federal judiciary is not advantageous terrain for successes in the battle for a climate system that can sustain human civilization into the future. It is far more likely that the enormous number of conservative judges appointed over the past thirty to forty years will to be a impediment to potential strong climate or Green New Deal legislation. This doesn’t mean we shouldn’t fight in the courts, but we must be measured in our strategic assessments and understand the real utility of climate lawsuits.

The Utility of Climate Lawsuits

For Juliana to succeed in all of its aims, basically everything has to go right. This means victories at the District Court, Ninth Circuit Court of Appeals, and Supreme Court. This strategy self-consciously banks on individual judges having courage, “doing the right thing”, and interpreting the law in a very novel way. While this could theoretically happen, it is highly unlikely that an entire institution is going to suddenly and abruptly reject its own ideological premises absent a major external force.

Put plainly, the utility of Juliana to the climate movement isn’t that it is likely to succeed in its direct aims. Instead, it is and has been important because makes demands on the formal system of government in a way that could actually impact the climate crisis. Up until Juliana, the closest effort at national climate action had been the incredibly weak Waxman-Markey cap-and-trade bill. Juliana pushed the boundaries of what was possible and by surviving an early dismissal and earning an historic ruling from Judge Aiken at the Oregon District Court of Appeals, it drastically shifted our imaginations about what was possible. By identifying the ways in which the federal government not only passively allows, but is directly responsible for climate change and its effects, this lawsuit helped us to develop a lens to view the totality of how government contributes to climate change. This was a conceptual leap that many in the climate movement have turned to for inspiration in campaigns like the Green New Deal.

More importantly, the lawsuit has been an incredible organizing tool. The media and organizing strategy that emerged with Juliana pushed youth climate organizing into the mainstream, spawning a new generation of activists. The longer that this well-publicized and creative lawsuit stays alive, the more attention is drawn to the moral and material need to act on climate in line with the dictates of science and justice.

This energy has also contributed to the rise of the Sunrise Movement and related climate justice movements that are pushing for a Green New Deal, a just transition, and an end to fossil fuel infrastructure. Juliana did not cause these movements, but — along with the Standing Rock protests and other important uprisings in recent years — has played a part in channeling outrage and the moral necessity of widespread climate action.

Moving forward, it is essential that we fight within formal political institutions for a Green New Deal by voting, lobbying, etc. We also need to continue to take direct action against the fossil fuel infrastructure that destroys the climate like the Jordan Cove gas export project & freeway expansions. We must coordinate these efforts under a common vision of an economy that is just, sustainable, and free of exploitation. And we must do so that our movements continually generate political actions at all levels of government. Only by fighting on all fronts simultaneously can we begin to unwind the cultural hegemony of neoliberalism and replace it with something far more life affirming.

Conclusion

This article is not intended as an obituary for Juliana or other youth climate cases. This most recent court of appeals dismissal will likely be appealed, and it should be. But, we must be sober about the chances that a conservative judiciary is going to side with arguments that undermine the entire worldview of its membership. With decisions like Brown v. Board of Education and Roe v. Wade, past generations came to rely on the courts as guarantors of rights in a way that no longer seems appropriate given the present political economy of the American judiciary. Although it is not impossible that an appeal will succeed, even in the unlikely scenario of success on the merits, a conservative President and Congress could simply ignore the decision and call the bluff of the governmental branch that has neither an army nor control over the budget. Accordingly, the climate movement must not rely too much on success in the courts. Our struggle is political in nature and there is no way around it.

The youth climate cases are an exciting vehicle for climate storytelling and making demands on power, but the courts are probably not going to rise up courageously to help solve the climate crisis. We may one day have judges that see the world the same way that as climate advocates after we’ve won the political victories necessary to appoint them.

 

1 thought on “The Climate Movement Can’t Count on a Conservative Judiciary”

  1. As one of over 22 million veterans who swore an oath to defend the constitution, I cannot express my dismay when the court says: “We do not have the power to Enforce the….. Fifth Amendment which states “No Person shall …. be deprived of life, liberty, or property, without due process of law.” The kids and their lawyers proved the deprivation, to my understanding. The court, in my opinion, does not need to fix the thing, but to remit to the legislature that the proven wrong must stop. The court just adjudicates. The legislature makes laws, prohibitions and appropriations. If their subsidies are costing the future or our kids…. as proven, they must stop it.

    This is only one of the reasons 20 veterans take their life…. Every Day: a stack of coffins four stories high. What the hell were we fighting to protect?

    And this tweak for your editor: If conservative court means the direct opposite of conservation, cannot your find a better moniker, say corporatist.

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