Kennedy Retires, Supreme Court Lets Climate Change Case Proceed

Associate Justice Anthony M. Kennedy poses for a group photograph at the Supreme Court bui
Olivier Douliery/MediaPunch /IPX via AP

WASHINGTON, DC – Wednesday marked the first day in 30 years of a Supreme Court without Justice Anthony Kennedy, with no noteworthy events from the Court’s final days aside from Monday’s order allowing a shockingly broad climate change lawsuit to proceed.

Kennedy joined the Supreme Court when the Senate confirmed his nomination on February 3, 1988, following 13 years as a judge on the U.S. Court of Appeals for the Ninth Circuit. By 1992 he was clearly understood to be a moderate justice rather than a conservative, and lawyers would craft arguments to target his vote throughout most of his tenure. With very few exceptions, he became the quintessential swing vote once Justice Sandra Day O’Connor left the Court in 2006, occupying that role alone for the next 12 years. He retired on July 31, 2018, at the age of 81, after precisely three decades on the nation’s highest court.

The Court’s only significant action during his final month came this week, when the Court on Monday allowed a climate-change lawsuit to proceed.

Twenty-one children – represented by an organization with the consent of their parents –  filed a federal lawsuit in Oregon, claiming a constitutional right to a sustainable environment, and suing the federal government – including President Trump directly – for violating that right by allowing regulations and policies that the plaintiffs claim leads to man-made global warming.

A left-wing federal trial judge in Oregon refused to dismiss the lawsuit, and also refused to certify his order as immediately appealable. The U.S. Department of Justice then filed a writ of mandamus – an extremely rare legal move – to the Ninth Circuit (Kennedy’s former court), asking for the court to order the district judge to dismiss the case.

The Ninth Circuit refused, but noted in its decision that it fully expected the federal district court to narrow the scope of the case quickly, and not allow any outlandish discovery orders or legal demands. But when the district court instead signaled that it could allow sweeping orders for testimony and documents, Solicitor General Noel Francisco applied for a stay from the U.S. Supreme Court, or alternatively for the Supreme Court to issue the writ of mandamus.

The Supreme Court denied both forms of relief, but signaled to the lower courts that they had better rein in this case quickly:

The Government’s request for relief is premature and is denied without prejudice. The breadth of respondents’ claims is striking, however, and the justiciability of those claims presents substantial grounds for difference of opinion. The District Court should take these concerns into account in assessing the burdens of discovery and trial, as well as the desirability of a prompt ruling on the Government’s pending dispositive motions.

“I am grateful that the justices put a shot across the bow of this out-of-control federal judge in Oregon not to let this crazy lawsuit turn into an all-out circus,” said former Trump Presidential Transition Team domestic policy adviser Ken Blackwell in an exclusive reaction to Breitbart News. “While we all want a clean and sustainable environment, nothing in the Constitution confers an individual right to launch a court challenge in what is essentially a political and policy debate attacking all the energy we get from fossil fuels.”

By calling the Justice Department’s filing “premature,” the Supreme Court reminded the parties that it can always step in later in the litigation if the trial judge permits things to continue on their present course.

Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.


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