Tied U.S. Supreme Court Sets Off Partisan Turmoil

News of U.S. Supreme Court Justice Antonin Scalia’s death sent odds-makers around the globe scrambling to recalculate the probability that the United States would live up to the commitment it made last December at the Paris climate summit.

Just last week, Scalia had participated in a 5-4 vote to put on hold the central plank of that commitment: President Barack Obama’s Clean Power Plan.

Energy and climate sector speculation quickly focused on what Scalia’s death meant for the future of the plan, aimed at reducing greenhouse gas emissions from U.S. electricity production, still largely coal-fueled. But that subject was immediately overtaken by an even larger one: how would the timing of Scalia’s death, nine months away from a presidential election, affect its outcome—and vice versa?

“Scalia’s Death May Have Saved the Planet” crowed one premature headline. More sober analysts ran a gamut from, ‘it helps, maybe, a little,’ through ‘it depends,’ to ‘it doesn’t matter.’

As Robinson Meyer reminded readers in the Atlantic, the Court’s stay of the Clean Power Plan was not straightforward. What it in fact ordered was “that the Clean Power Plan could only enter into force after the Court itself ruled; or if the D.C. Circuit Court of Appeals heard its case (as it is scheduled to do this summer) and the Supreme Court declined to hear the inevitable appeal.”

That means the high court’s decision left the lawsuit launched by fossil fuel industry groups and 27 U.S. states against the Environmental Protection Agency, which is implementing the Clean Power Plan, alive before the Federal Court of Appeals for the District of Columbia. Its bench is regarded as pro-environment, and likely to uphold the plan. Its opponents are expected then to appeal that verdict to the Supreme Court.

At that point, the Justices will have the option of hearing the appeal or not, and if they allow it, to judge the case. That’s where Scalia’s absence may change the outcome. With Scalia, it’s more likely the Court would have heard an appeal of a pro-CPP ruling, and perhaps also more likely to strike it down.

In that case, several observers (not all) worried that the United States’ inability to meet its climate commitments could prove to be “the proverbial string which causes Paris to unravel,” as one expert told The New York Times.

Scalia’s death, reducing the Court’s panel to eight judges, complicates the odds-making. If a lower court judgment and appeal arrive at the Supreme Court while its panel is still reduced to eight justices, Scalia’s absence may make the difference between an appeal being heard, or not. In cases where a vote to hear a case splits 4-4, the original verdict is automatically upheld (although the full court may revisit that on a subsequent appeal).

The timing of Scalia’s departure also leaves open the question of how long the Court may remain short-handed and broadly split on ideological and partisan lines (with Justice Anthony Kennedy something of a swing vote). Obama quickly announced that he would nominate a replacement. But the U.S. Republican Party, including its entire slate of presidential candidates and Senate Majority Leader Mitch McConnell (R-KY), joined ranks to question is right to nominate a Supreme Court judge in his last year in office (though plenty of past presidents have done just that).

Then again, in some views, it may not matter much. Sustainable investing advisor Julie Gorte of Pax World Management in Portsmouth, MA suggested that even with Scalia, the Supremes were never likely to throw the Clean Power Plan out.

“It was the Supreme Court that affirmed that regulating greenhouse gas emissions is covered by the Clean Air Act,” Gorte told the told Colorado-based Public News Service: “For the Supreme Court to really kill the Clean Power Plan would mean that they’d have to reverse an earlier Supreme Court ruling, which they rarely do.”