Dark times for the rule of law.

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Justices Turn Power-Plant Case Into a Charade

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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There’s no mistaking the message of the U.S. Supreme Court’s 5-4 decision to stay the Barack Obama administration’s Clean Power Plan regulation while it’s being challenged before the U.S. Court of Appeals for the D.C. Circuit. Before Tuesday, the court had never granted a regulatory stay in such circumstances, where the lower court hasn’t ruled and has itself declined to block the regulation while it’s considering the case. It’s understandable that environmental advocates are upset.

What’s less obvious is why the Supreme Court hasn’t done this sort of thing before, and what’s wrong with them doing it now, if anything. Evaluating the competing values at stake should help us understand whether the court got it right -- and whether we should expect more such stays in the future.

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Start with the reasons a court, including the Supreme Court, ever issues a stay before a case is decided. The classic reason would be that one of the parties, usually the one seeking redress, would suffer some significant and irreparable harm while the case proceeded to its conclusion -- even if that party ultimately won. The core idea is that, if one side is likely to prevail anyway, it doesn’t make practical sense to subject it to serious harm while it waits for justice.

For that reason, a court considering a stay application ordinarily asks two questions: Is the requesting party likely to win? And will it suffer irreversible harm before it does?

Notice that every time a court issues a stay under the standards, it’s tipping its hand about how it expects the case to come out. If it’s a single judge, say in a federal district court, granting the stay suggests he or she has already formed a preliminary view, even though the case hasn’t been fully briefed or argued. If it’s a three-judge appellate court granting the stay, then two judges at least are telegraphing what they expect the results to be.

Everyone understands that a court isn’t bound to reach that anticipated result. But the signal is so strong that, in many cases, the parties reach a settlement when a stay is granted. This is evidence that litigating parties understand basic psychology: Once someone, even a judge, has publicly adopted a view, it becomes harder to adopt the alternative view.

Given this background, you can see why the five conservative justices were prepared to grant the stay in the Clean Power Plan case. At least four of them must be quite certain about how they expect to vote. The swing vote, Justice Anthony Kennedy, is less certain, because his vote in environmental cases is sometimes unpredictable. But in June, Kennedy joined the conservatives in striking down power-plant regulation under the Clean Air Act. He may very well have the honest instinct that the merits of this power-plant-emissions case lie with the states that are challenging the regulation.

If the five justices know to a high degree of probability how the case is going to turn out, why subject the electricity industry to the costs associated with preparing to be regulated by the federal government? Efficiency, and arguably fairness, would call for the granting of a stay. This is especially true when five justices think that it doesn’t matter what decision the D.C. Circuit reaches. It would be presumptuous for the appellate court to predict what the Supreme Court will do. But it’s pretty reasonable for a majority of the court to predict its own actions.

In opposing the stay, the solicitor general’s office argued that the regulation imposes only light burdens on the states, which must either prepare regulatory plans of their own or allow the federal government to do it for them. But the real party at interest here isn’t the states -- it’s the regulated industries that must plan ahead, and will have to wait for the multistage litigation. By telegraphing the likely outcome, the Supreme Court is almost certainly saving money.

On the other side of the scale is the value of due process. Because what’s at issue are regulations, the D.C. Circuit will be the first court to review their legality. In other words, thus far no judge has fully looked at the merits of this case. It’s worrisome for the Supreme Court to suggest that it already knows the results before full arguments have been made and a judicial opinion issued.

It’s also terrible for the process of justice before the D.C. Circuit. It’s hard enough for judges in complex regulatory cases to apply the law correctly while worrying about whether they’ll be rebuked by a Supreme Court decision overturning their judgment. But what’s an appellate judge supposed to do when he or she has been told by the highest court in the land that it already knows the outcome? The Supreme Court has turned the case before the D.C. Circuit into a charade.

In effect, five justices have now created a new procedure for certain high-profile regulatory cases: The Supreme Court will weigh in before the congressionally mandated process of appellate review has taken place. In this specific case, the practice may enhance efficiency. Over time, if repeated, it will undercut the due process values that assure the rule of law. And those costs outweigh the benefits.

  1. Courts also typically ask whether the equities tip in the requesting party’s interest, and whether public interest would be served by a stay. But these inquiries are generally difficult to make independent of the first two.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net