Mike the Mad Biologist

In case you missed it, last week the NY Times got its hands on internal Supreme Court documents related to the first use in 2016 of the shadow docket to announce court orders without explanation. This, for me, was the striking part (boldface mine):

Justice Breyer responded later that day to the chief’s memo but did not address all its points. Such stays were unusual, he wrote, stating his objections mildly.

He skipped over the question of whether the plan was lawful, asking only: Why the rush? The circuit court had already set a date to hear the case in June. The first deadline for power plants to reduce their emissions was six years away; full compliance was not required until 2030. That was plenty of time for the case to play out through the legal system.

The chief wrote right back the next day sounding irritated and blunt.

Speed was vital, he said, because environmental regulation was going to be very expensive for states and the power industry. The sums involved could approach $480 billion, he asserted, and industry groups would have to start preparations immediately.

Let’s leave aside the reality of what happened: the power plant regulations were so tepid that the companies exceeded the standards without any regulation, other than to say that conservative Supreme Court judges suck at policy analysis.

What I cannot get past is the concern over the amount of $480 billion as an excuse to employ the major questions doctrine. If we take Roberts’ statement at face value and in good faith, it seems clear that an amount of $4.80 would not be an issue. So somewhere between $4.80 and $480 billion, the cost is too much. Is it $48 billion? $4.8 billion? $967 million?

How does one draw the line? How does a president know where that line is? And how should Congress write legislation as to not run afoul of a conservative Supreme Court?

It is just bullshit all the way down. Pack the Court, and when needs be, strip it of jurisdiction.