SHOW INTRO Mr. Chief Justice, and may it please the court. It’s an old joke, but when I argued and argued against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”

Melissa Murray Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it where your hosts for today. I’m Melissa Murray.

Leah Litman And I’m Leah Litman and we are excited to be bringing you a special summer episode that continues our coverage of West Virginia versus EPA, the major climate and administrative law decision that the Supreme Court decided on the very last day of the blockbuster 2021 term.

Melissa Murray And joining us today is someone who is not a stranger to Strict Scrutiny. In fact, he is a strict scrutiny super guest. This is his third time on the podcast. And I just want to say, he is someone who in the upper chamber gives Representative Katie Porter’s whiteboard a run for its money. That’s right. You guessed it. Welcome back. Senator Sheldon Whiteboard, Whitehouse.

Senator Sheldon Whitehouse Thank you. Good to be back with you.

Leah Litman So we are jazzed to have Senator Whitehouse with us to discuss West Virginia, because the case really encapsulates several of the worrying trends about the federal courts that Senator Whitehouse has been on the forefront of highlighting trends like the dark money campaigns that seek to control the courts and a captured court that serves the interests of dark money. But let’s not get too far ahead of ourselves and spoil the show.

Melissa Murray So briefly, by way of recap, let’s just do a quick Q&A to re acclimate ourselves, pun intended, with West Virginia versus EPA. That was the major climate case in which the court opined that the not in effect and indeed not ever, in effect, clean power plan that had been promulgated by the Obama administration some seven years ago was no longer a viable expression of the Clean Air Act. So, Lia, can you tell us what the Clean Power Plan was?

Leah Litman Yes. So that was the regulation passed by the Obama administration to reduce pollution and emissions from greenhouse gases. The plan never went into effect because the Supreme Court stayed it. That is, it paused the regulation, preventing it from going into effect. And the regulation has never been in effect. And in the intervening years, the plans, targets or metrics for greenhouse gases had been met. So even if it did somehow go into effect, it’s not totally clear what exactly it would have required. So what did the court do with that? Not in effect, regulation, Melissa.

Melissa Murray Well, that’s really interesting, Julia, because when a case like that where a regulation has not gone into effect, indeed has never gone into effect, you might think that the court out of prudence or because of the Constitution’s requirement of an actual case or controversy, might say, let me stop myself. But in fact, the conservative super majority on the Supreme Court said, hey, while we have this conservative supermajority, let’s just forget about just disability entirely and invalidate this not ever in effect, and never going to be, in effect, regulation. And let’s say it exceeds the EPA’s power under the Clean Air Act. So that’s exactly what the court.

Leah Litman What’s a little justiciabilty between friends?

Melissa Murray Not a thing, Leah. And that’s exactly what the court did. It said that the EPA lacks the authority under the Clean Air Act to adopt various provisions of the not-ever- in-effect, Clean Power Plan that were denominated as, quote unquote, outside the fence line or quote unquote, generation shifting rules or requirements.

Leah Litman And can you remind us what generation shifting and outside the fence line requirements are?

Melissa Murray Right. So we discussed this a little bit on our earlier episode, breaking down this case, but that means that the EPA cannot adopt rules that require power plants to use other methods of power generation or even cap and trade schemes. So again, this really limits the authority of the EPA to do things to fight climate change.

Leah Litman But in some ways, the decision ended up, I think, being more significant for what it says about how the courts will review administrative agencies actions in general, rather than for what the court said about climate change in particular. That’s in part because Congress passed the Inflation Reduction Act, which contains, among its many provisions, several huge items that amount to real federal climate policy.

Melissa Murray It’s almost as if Congress thinks the court might have gone too far.

Leah Litman Almost, almost.

Melissa Murray All right. So the real significance then of West Virginia versus EPA may end up being about the court’s limitations broadly on the authority of administrative agencies. And so we’ve discussed this a lot on the show, but the court here really didn’t deploy any of the traditional canons of statutory interpretation. I mean I think what we could generously call this is a kind of “vibe” of statutory interpretation. And that, of course, is the court’s elucidation of what is now known as the major question doctrine, which is to say that agencies cannot adopt, quote unquote, major policies that are not explicitly authorized by statute.

Leah Litman Yes. So that’s the overview. Now, let’s get into the case and start at the beginning, or at least where federal courts are supposed to start when they hear cases. Namely, whether they should even hear the case at all. In legal terms, that means whether the courts have jurisdiction. Those are the set of justiciability doctrines Melissa was referring to.

Melissa Murray Senator Whitehouse filed an amicus brief in this case on behalf of himself and Senators Blumenthal, Sanders and Warren. And let me just read a paragraph from the intro before we talk about the case. So here’s the intro. Almost everything about these cases, the theory, the arguments, and even many of the parties and amicus curiae is an industrial product manufactured in an effort to return to an area free from oversight by the government. The theories and arguments were incubated, grown, propagated and distributed by a well-funded apparatus that has selfish and destructive goals. The brief then talks about why rules regarding justiciability and jurisdiction rules about the kinds of cases that courts should or should not hear are especially important in this era of industry led but anonymized litigation to advance a political agenda. So, Senator, can you tell us more about that?

Senator Sheldon Whitehouse Well, we are trying to make two points here that you’ve touched on. One is that the substance of what the court was being asked to do was, in effect, kind of a toxic substance that had been created and cooked up by big regulated industries, particularly the polluting fossil fuel industry, over years in their right wing think tanks, and then the right wing fossil fuel funded wings or divisions in law schools. And what we describe it as a doctrine that is reverse engineered to get to the result that the polluters want, which is weakened regulation. So the artificial nature of the major questions, doctrine and its history as the product of polluter funded think tank era was a key piece that we wanted to make known. And then, of course, the fact that the court really had no business getting into this case in the first place, which is a big deal. You know, if we think of our Constitution, one of the big things we know as the prime attribute of our Constitution is separation of powers. And the way the separation of powers constrains the judicial branch is. You’ve got to stick to cases of controversies. You don’t get to be a free ranging knight errant charging around, you know, pursuing your own ideals of truth and beauty. So the court should have stayed out of this. Under the constitutional doctrine of separation of powers. So those were two of the points that we were making in the brief.

Leah Litman So if the major questions doctrine is a toxic substance, can the EPA regulate it?

Senator Sheldon Whitehouse But awfully mad unloading theories.

Melissa Murray We know shook hands. We know that because it goes beyond the workplace, it’s toxic everywhere.

Leah Litman Yes.

Melissa Murray You’ve raised an interesting point. And now, Senator, I cannot get the image of Justice Alito with his amazing skin care atop a horse charging forward to deregulate so many industries. But can you sort of focus on.

Senator Sheldon Whitehouse Your experience from the fossil fuel industry in his ear, telling him which way to go?

Melissa Murray What do we think about the prospect of the court serving essentially as a back up forum to do the kinds of things that you cannot accomplish in ordinary majoritarian politics? So regulated industries cannot get this through Congress. So instead, they’re turning to the court to invalidate things that are being produced either by Congress or by administrative agencies at Congress’s behest.

Senator Sheldon Whitehouse Yeah, if you look back through history, they’ve tried for years to get a lot of things that they want done, and they can’t even get Republican members of Congress to vote for this crap because they know that they’ll have to go face their voters and lose. They had a big moment when Ronald Reagan came in and they thought they were going to be able to tear apart the so-called administrative state and deregulate themselves. And they had that little advisor of Reagan’s who was going to be their minion in getting all this done. And that blew up in their face so badly that Reagan had to take his little guy out to the, quote, woodshed and backpedal on all of the deregulatory stuff. So they couldn’t do it through a legislative branch. They couldn’t do it through executive branch because the people hate it. So they’ve been stacking the Supreme Court with people who will do their stuff for them, no matter how distasteful the American public finds it. And in fact, in the jobs decision, you see them talking about how we don’t care that the public hates what we’re doing because we’re above all that.

Melissa Murray Definitely above the public and. DOBBS And maybe everywhere else.

Leah Litman So another kind of mechanism that the brief to. Scribes for accomplishing this. That is, getting something through the courts that couldn’t happen in the political process is the anonymity that the judicial process affords these different groups, because it allows these groups to conceal from the American public whose interests are at stake in these cases and whose ox is being gored. And the brief describes how industry groups, you know, rely on litigation to advance their aims. So how does the anonymity in the judicial process relate to the court functioning as this backup plan or forum for these groups to advance their agenda there?

Senator Sheldon Whitehouse Well, the most kind of obvious and immediate way is through amicus briefs, the briefs that people file when they’re not parties to a case but want to be heard by the court. And amicus briefs have become a very big thing in the Supreme Court in the last couple of decades. And they solve a problem, which is once you’ve spent billions of dollars in dark money on the Federalist Society to pick the judges you want on the court, once you’ve spent hundreds of millions of dollars on the Judicial Crisis Network to campaign for the judges that you want on the court, now you’ve got your judges on the court. How do you expect them to remember what they’re supposed to do? You tell them what they’re supposed to do by sending in a little flotillas of amicus curiae friends of the Court. And it’s these little flotillas that are anonymous. So they’ll file a brief under name of an entity that makes no product, provides no service. Its whole job is to file briefs and screen who the real party and interest is. And that helps in a couple of ways. First of all, it helps obscure the fact that many of these briefs are funded by the same parties behind them. There’s an illusion that there are a dozen different groups that have all come by coincidence into the same case, when in fact, these are piano keys being played by the same piano player. And second, you had the identity of the piano player. So it’s the system through which the system that got these judges on the court communicates what it wants to the court. And there’s an amazing correlation between the judges being told what to do by these anonymous amicus curiae front groups and where their decisions go. It’s almost perfect.

Leah Litman Yeah. So among other scholars who have studied this, Nick Stephanopoulos at Harvard did a study of the partizan breakdown in election law cases and found that where the GOP lined up all on one side in this election or law of democracy or political cases, that’s also where the Republican appointed justices ended up falling. And of course, the precise mechanism is unclear here, but the coincidence, the fact that that happens is still notable.

Senator Sheldon Whitehouse Yeah, I did a research paper years ago that was published through the Center for American Progress and was fly specked by them and has been subject to public scrutiny. I published a similar one that referred to it in the Harvard Journal on legislation. So it’s been out there for anybody to critique for a long time and nobody has successfully critiqued it. And what it showed is that as of the time of that first paper, the record, when the partizan Republicans on the Supreme Court ganged up together and went and did a 5 to 4 decision in those, first of all, was almost always in an area in which there was a partizan Republican big interest interested in the outcome. And in those cases in which the five four partizan obvious Republican special interest aspect to it all occurred, the win rate was 72 to 0. So they’re not even like throwing the occasional bone to the other side to try to cover their tracks. This is just, you know, tire tracks right across America’s back, 72 to nothing.

Melissa Murray So I praised your use of the whiteboard, but I really feel that I should be praising your amazing imagery, Senator. I mean, like, we’ve had flotilla of images going forward. We’ve had Justice Alito atop a horse giving bootleg bridgerton vibes, and now we’re just literally driving over the one.

Senator Sheldon Whitehouse What’s yours? I did that in your piece, just out of the ear piece from Fossil Fuel Central, telling them what they wanted.

Melissa Murray Are you even Regé-Jean page gets fed his line, Senator, so no worries. This whole question of these anonymized interests has popped up in the voter contacts, as Lisa has noted, in the context of gun rights and fights over gun control legislation, as has been reported by Politico. Can you tell us how in West Virginia, a similar kind of organized media campaign emerged to protect the fossil fuel industry as it went forward in this litigation?

Senator Sheldon Whitehouse Yes. And in fact, not only did that happen in this litigation with a bunch of these. Well. Fossil fuel funded climate denying front groups are all turning up. But you also had a Republican funded fossil fuel state attorneys general in doing the bidding of the fossil fuel industry. You may remember that little scoundrel Scott Pruitt.

Leah Litman Rings a bell.

Senator Sheldon Whitehouse Yeah. Who became for a while the director of the EPA before he disgraced himself and had to hightail it back to his fossil, but not.

Melissa Murray Before he ripped off all of the hotel lotion.

Leah Litman Load. I was just about to say.

Senator Sheldon Whitehouse He was lotion.

Leah Litman Boy. He just wanted Justice Alito skin. He got really into moisturizing and he needed to steal all the hotel lotion to do that.

Melissa Murray If only he had just gone to Exxon and gotten some oil. And it.

Senator Sheldon Whitehouse But his his trial, his bid for this position at EPA was probably forged when, as the attorney general of Oklahoma, he sent a letter to EPA challenging one of their environmental rules. And the letter had come from a fossil fuel company, Devon Energy, I think it was. And other than changing the salutation and the things that are necessary to make it actually fit as a letter from a state attorney general to a federal agency. It was verbatim. He just cut and pasted from the fossil fuel industry and put it on his official government letterhead.

Leah Litman Copy. Paste, Pruitt. That’s what they said.

Senator Sheldon Whitehouse Yeah. Big sign that he’s going to be their kind of guy at at EPA. So you have a long history of these fossil fuel attorney generals, officers who are paid for with dark money. Remember that the Republican Attorney General’s Association has a501c4 attached to it. Yes. Which was behind the January six incident, spending money to bring people up to the Trump rally and the assault on the Capitol.

Melissa Murray So it’s a pretty big MAGA collab.

Senator Sheldon Whitehouse Exactly. It’s a ragged MAGA coalition. And the fact that they would do the bidding of fossil fuel comes as absolutely no surprise. So in this case, it was even worse because you had more than just the front group flotilla. You also had the fossil fuel funded attorney general flotilla.

Melissa Murray So there are a lot of really interesting amicus pairings here. So one Amicus Competitive Enterprise Institute received funding from Exxon, Murray Energy, no relation, the American Fuel and Petrochemical Manufacturers, the American Petroleum Institute and groups tied to fossil fuel billionaire bucks. Right. And then the Cato Institute is also founded and funded by the Kochs and ExxonMobil and other fossil fuel companies. They filed a brief. Americans for Prosperity, where we heard that name before, Leah, they also filed an amicus brief. Again, they’re founded and funded by the Coke family. So this is, as you say in the brief, an effort carried out by their front groups, proliferated through the political process, through faux intellectual ideas and grassroots campaign strategic appointments and policy proposals in the executive branch and massive campaign contributions to those running for Congress.

Senator Sheldon Whitehouse And just to add one little element of flavor to the process at the Competitive Enterprise Institute lurks creepy little Myron Ebell, who was on the EPA transition team for Trump to make sure that every climate denier they could find got into EPA for the benefit of the fossil fuel industry. So wherever you look, you see the same little cast of characters. Sometimes they have different front groups that they’re operating with and through. But once you start to recognize the players, it’s a well, just it’s a nasty little crew.

Melissa Murray You can hate the players and the game. Yes.

Leah Litman So you alluded to this already, how there has also been, you know, some involvement in funding, you know, an organization of attorneys general to advance anti-climate science and deregulation to the brief noted a secretive alliance that has emerged between red state attorneys general and fossil fuel companies to litigate in federal courts. You filed that brief last year, and just earlier this summer, the New York Times published a report that found nearly two dozen Republican state treasurers were working in conjunction with one another to undermine climate action and also found that they had pulled a bunch of money out of BlackRock because that investment manager was focused on environmental issues and that this effort was being coordinated and funded by a single nonprofit. So how does it feel once again, to have been right and prescient about this issue so early? Like, do you get tired of being a Cassandra? Like, can you just start sending your briefs to the times and be like, write a story about this?

Senator Sheldon Whitehouse I want to start being wrong about this stuff. I’m tired to be in the pitch pipe. I want to be wrong. I wish this stuff would stop in our country. It’s pretty disgraceful and disgusting. But what it reflects is that after Citizens United, once the fossil fuel industry could spend unlimited money, and once it became clear the court was not going to enforce its transparency predicate, that they could do it anonymously. They could then run all this money through all these front groups and make big threats to Republicans who dared to cross them and make big promises to Republicans who promised to do their bidding and basically take the Republican Party in tow. And they did that first in Congress, because that’s where things like cap and trade were being discussed. And that’s where there was bipartisanship in the Senate on climate legislation. But once they had the Congress locked down, they then started pushing down into the governors, down into the attorneys general. And as you mentioned earlier, now even state treasurers are being co-opted to become the fighting arm of the fossil fuel industry against banks and finance houses who have the temerity to want to be able to quantify climate risk for their customers.

Leah Litman What? Radicalism?

Senator Sheldon Whitehouse Yeah. Yeah. Big banks are now nervous about climate. At risk, and we’re so radical that we’re going along with that. I mean, please.

Leah Litman [AD]

Melissa Murray So let’s shift to the merits of this case. So I think we all can agree that it was unorthodox for the court to wade into a case that was challenging a set of regulations that, in fact, had never gone into effect. But leaving that.

Senator Sheldon Whitehouse And we’re never going to go into effect.

Melissa Murray Yes, it was almost like they could have exercised restraint. But as we’ve said on the show before, this is the YOLO Court. And the YOLO Court doesn’t wait for the marshmallow. It eats the marshmallow right then and there. So let’s talk about the marshmallow eating. As we noted in this case, the court formally announces the major questions doctrine, which in its current form and in the hands of this current court, is essentially a deregulatory cudgel and a vibe of statutory interpretation. Like does this feel like it’s a big deal to me? Neil Gorsuch If it does, I’m going to deploy the major questions doctrine to basically kill it. So let’s situate that doctrine in the context of administrative agencies, and we can’t really improve on the description from your brief. So I’m just going to read it as you tell us, the result has been an astonishing success over the past 50 years. Congress charged regulatory agencies operating under congressional supervision and executive appointed leadership with protecting the public interest in countless ways, such as ensuring the safety of the water we drink, the air we breathe, the cars we drive, the medications we take, and the markets we invest in for our retirement and our children’s future. Medicines are not snake oil mysteries any longer. People are rarely burned or killed in boiler explosions. Automobiles have air bags. Smokestacks mostly have pollution controls, stock jobbers have a harder time suffering innocent investors. Most insurance policies actually pay when they insured risk occurs. We take for granted the safety and reliability that a regulated world has built thus protected. We may overlook the simple reality that industries motivated by maximizing their profits often cause social harms. That is why regulation is often imperative. It’s almost as though you were channeling Elena Kagan. This is how government works, people.

Senator Sheldon Whitehouse And it works really well. Yes, we’ve grown to be the biggest and strongest economy in the world with pharmaceutical products that everybody else wants that can solve pandemic vaccine questions. We have the best marketplaces that people from around the world try to come and invest in. We make cars that everybody wants to buy. And, you know, we do all these things and we do a lot of it because we have regulations that keep the cheaters from screwing up the business for the companies that are doing it right. And it’s only the dirty companies and the polluters that think of all this as being bad. And they’ve created this mythology about strangulation by bureaucracy when in fact regulation has strengthened our economy and about unaccountable bureaucrats, when in fact, they couldn’t be more accountable. They serve at the will and pleasure of the President. At least the EPA administrator does, as does the senior team. They could all be fired if they step out of line. And every thing that they do is subject to robust judicial scrutiny for not just the outcome, but for the procedure that they follow, the rules, that it’s transparent, that it’s based. In fact, it has been enormously successful, both substantively and in terms of staying under the proper political control of the American public. But the big polluters don’t like either of those two facts. So they’ve created this alternative mythology and it’s just wrong. And that’s why I wanted to say that in the brief.

Melissa Murray And you say it really well in the brief. And I think one of the things our listeners would really like to understand, I think we have made clear over the years how the judiciary has really become the cudgel for dismantling the administrative state. But I’m actually interested in how you saw this campaign to limit administrative agencies and regulation sort of play out in Congress. Like what were the first inklings that this is where they were going and that they would use the courts to get there?

Senator Sheldon Whitehouse Well, you know, probably the Congressional Review Act, which was an effort to prevent anybody from protecting a regulatory decision from being overturned by Congress by virtue of using the filibuster. The Republicans are all about, you know, how important the filibuster is now that they are in the minority. But when they weren’t, they built the Congressional Review Act to get around Democratic filibusters, trying to undo agency decisions. So you had things like that. A lot of it doesn’t show up in Congress, so you’ve got to look out into the sort of creepy netherworld of the polluter funded front groups and their academic cartoon level faux academic groups. And when you see that, then you see these doctrines like the major questions doctrine. Originalism and all that stuff begin to get cooked. And what was really disheartening here was that this is the first time that the courts ever used major questions, doctrine, and not just the major opinion, but also the concurring opinion. Both went out of their way in their first paragraphs to say this is a major questions case, as if there were such a thing as a major questions case, they didn’t say, we are now inventing a major questions doctrine cooked up by the fossil fuel industry. To look at this, they acted as if this was extant. And of course it isn’t. The only good news here is that they were so pleased with themselves about being able to launch major questions doctrine from the fossil fuel doctrine factory into American law that they actually didn’t take a very big chop at the actual Clean Air Act. I was worried they would have done a lot more damage to the Clean Air Act. But actually Administrator Regan has a lot to work with to go after fossil fuel, because I think they were just so infatuated with having done major questions doctrine. They didn’t really bother to do the rest of their of the damage.

Melissa Murray Senator, you can’t eat all the marshmallows right away. You have to leave some for October term 2020 to.

Senator Sheldon Whitehouse Say exactly where. They’re not done with us yet.

Melissa Murray They’re not done with us yet. So so a lot of this is just really pretextual, right? So it is about deregulation. This idea that somehow the administrative state is less accountable is frankly ironic, given that it’s unelected judges who are the ones pushing this through right now.

Senator Sheldon Whitehouse That’s the least accountable branch.

Melissa Murray Yes.

Senator Sheldon Whitehouse Is scolding a branch that is accountable both to the executive and the judicial branches and, of course, to the legislature. If we don’t like what the EPA is doing, we can strip its powers, we can strip its budget, we can put riders in appropriators telling them how to fix. And we got the Congressional Review Act. So, you know, to pretend that these administrative agencies aren’t examined from every direction by executive, legislative and judicial branches is just fantasy.

Leah Litman And Sam Alito, Neil Gorsuch and Amy Barrett won’t even allow the press into their speeches. So just when you’re comparing, you know, accountability and transparency, it’s a little different. So as you mentioned, the successful regulation of the American economy is in the public interest, and part for that reason is supported by the public, which makes it difficult to roll back these legislation and regulation in the political process. And so they turned to the courts. And I think some people made this connection rather explicit. That is, they weren’t all that subtle about the plan to use the courts to accomplish this deregulatory end. And you referenced some of that in your brief. And I didn’t know.

Senator Sheldon Whitehouse There are about as subtle as a brick, including Trump’s White House counsel saying, you know, our whole thing with judicial selection and how we pick these judges, that’s the flip side of the coin of our effort to deregulate is mean in the same sentence. You don’t even have to go and get different sentences and put them together. He said it in the same sentence.

Melissa Murray The quiet part out loud by one. Don McGahn.

Leah Litman Yeah, and it probably in part for that reason that the groups, many different groups were willing to spend so much money on judicial nominations because they saw it as part of this deregulatory effort. The brief notes there was something like $400 million spent on a deregulatory effort targeting the judiciary.

Senator Sheldon Whitehouse Yeah, that’s been raised now by the people. They do more research, they find more money. It’s now, I think it $580 million, more than half a billion dollars spent to capture the United States Supreme Court and make it the tool of the special interest willing to spend $580 million.

Melissa Murray I love an independent judiciary, but let’s just get into what this independent judiciary has done in West Virginia versus EPA so we can give our listeners a flavor of how this decision relates to all of these goals to deregulate and dismantle the administrative state. So the court says that, quote unquote, major questions or major policies must be specifically and explicitly authorized by Congress in the statute. Doesn’t matter if the best reading of the statutes, broadly worded grant of authority is that the agency has the authority to adopt the policy, it’s that it’s major. It has to be explicitly authorized.

Senator Sheldon Whitehouse That’s more or less the theory of the case.

Leah Litman Yeah. So, Senator, why is that doctrine or why could that doctrine be such a powerful deregulatory tool in the hands of these courts?

Senator Sheldon Whitehouse Because it’s so easy and there is absolutely no constraint on a court deciding, hmm, this new regulation looks pretty major to me. Let’s just stop it.

Melissa Murray They don’t actually define really what major like a body.

Senator Sheldon Whitehouse Via precise deals.

Melissa Murray Big fields.

Senator Sheldon Whitehouse Big deals, big goals, big clubs stop you from doing it.

Leah Litman There are a lot of amicus briefs, right? Saying this regulation is no good. Must be.

Senator Sheldon Whitehouse Major. Must be major. I can tell from the number of amicus briefs. It’s the same crummy foundations.

Leah Litman And it’s not in the.

Melissa Murray Text. I mean, we are all textual ish now, so if it’s not in the text that the problem.

Senator Sheldon Whitehouse No text here. This is all invented and it’s all invented in right wing groups that were funded specifically to invent and give a veneer of credibility to these reverse engineered doctrines that get polluters out of harm’s way from regulators.

Melissa Murray So Leah actually makes this point in a new article that she has coming out with Dan Deacon in the Virginia Law Review. And I just want to give her a chance to do a Clarence Thomas and cite herself. So where do you want to maybe say a little about your article?

Leah Litman I would love to, Melissa. Thank you for that gracious opening. Let me trot out this theory and see see what you all think. Okay. So the court’s definition of maiden is while they didn’t give a clear one, did seem to rely in part on a few different indicators. One was whether there was political controversy or political opposition to a policy. But that basically just gives these industry groups and the Republican Party a veto over regulations because it tells them, well, if you don’t like a policy, you just make a big stink about it. And then we’ll say it’s a major one and therefore isn’t authorized by statute, which just further enables minority political rule and contributes to the dysfunction that the courts have created. Plausible? Not possible.

Senator Sheldon Whitehouse Not only is it plausible, it aligns very well with something Justice Roberts said some years ago. In one of his cases, the precedent would be given less value by him if there were continuing controversy about it. So as long as you have a big special interest that is bitching constantly about it, now you have controversy and now it’s not as precedential. What an amazing coincidence.

Leah Litman I support that example in a footnote.

Senator Sheldon Whitehouse And in addition to that, this dark money enterprise has its faux outrage creation component, which I’ve experienced on several occasions, which is when they can drum up in right wing media a whole little windstorm of outrage. Usually they throw in some lies to try to get the outrage, to have a little bit more credibility. But they whip up faux outrage as a strategy, as a tactic in their operation. So to have the court control part of the operation say, well, if there’s a lot of outrage, then that’s going to affect our judgment. That’s just handing back to these same fossil fuel guys the power to, with faux outrage, manipulate the law and the perception of the courts of what should be there.

Melissa Murray I also think that this iteration of the major question doctrine actually hobbles Congress in some really important ways. So it clearly undermines the effectiveness of delegations. And, you know, one of the reasons why Congress delegates authority to administrative agencies is that Congress doesn’t always have the expertize to know what to do to solve a problem. And, you know, another problem is that facts may often change and technology can change. And Congress may not in the moment have the flexibility to adapt its rules continuously to adapt to those changing circumstances. And so there are reasons why Congress would not in advance spell out what an agency can or cannot do, but rather give a broad grant of authority and delegation to the agency within prescribed limits to essentially regulate in furtherance of the statutes goals.

Senator Sheldon Whitehouse And with continuing authority to police review on an ongoing basis through budgets, through legislation, and through Congressional Review Act.

Melissa Murray So why don’t your colleagues on the other side of the aisle see this move as a major imposition on Congress’s authority?

Senator Sheldon Whitehouse Well, I think this is my theory. I think if you look back at who was behind packing the court with the deregulatory crowd, and if you look at who was behind all the amicus briefs, you will find that they are also behind Mitch McConnell’s political operation. So the dark money flows through a lot of different spigots and into a lot of different pools. And one of them is Republican politics. So if you’ve got enormous amounts of dark money flowing into your so called independent expenditure groups. Switch is your big spending. Very often these groups now outspend campaigns, so they’re really dominant in elections. What Republican is going to complain when they’d be complaining about their own biggest donors? The people who are writing checks in the tens of millions of dollars.

Leah Litman And I think we’re seeing both of these trends or dynamics play out in the courts right now. Litigants have invoked the major questions doctrine against various administrative actions that are opposed by elements of the Republican political party or where that delegation will be affected. So Texas invoked the major questions doctrine and the lawsuit challenging the Deferred Action Program for Childhood Arrivals. Dacca, Texas, also invoked the major questions doctrine in the suit, challenging the federal directive that hospitals must, under federal law, provide abortions where necessary to save the life and health of the pregnant person. Texas has invoked it, arguing that the NRC lacks authority to issue a license for a proposed interim storage site for nuclear waste. They’ve invoked it in a challenge to EPA’s authority to address tampering with emissions controls, basically, again, just like serving the Republican Party’s agenda.

Senator Sheldon Whitehouse And it should come as no surprise that attorneys general, funded by the fossil fuel industry and by the dark money operation, are instantly fully up to speed on the potential uses of this brand new fresh out of the box major questions doctrine and ready to apply it everywhere, almost like they might have seen it coming.

Melissa Murray So what we have here is a court that has been constructed, and I use that word purposely, in part through dark money contributions with industry groups spending just insane amounts of cash to support judicial nominations and President Trump’s candidacy. And now we have these court decisions that serve the interests of these groups in incredibly consequential ways. And this all has a kind of pointed irony to it. And one critique of the administrative state is this idea of regulatory capture that industry groups could capture an agency and exercise undue influence on it to the detriment of the public. And that’s been one of the slants on the administrative state. And another is, again, this question of separation of powers, that they’re unaccountable. But here we have regulatory capture at the court, the unaccountable, unelected court, and no one seems to find this ironic or problematic.

Senator Sheldon Whitehouse Well, except the three of us.

Leah Litman And Kate.

Melissa Murray And Kate.

Senator Sheldon Whitehouse I mean it. And it’s so important to point out that this is not a conservative court. This is not a question of doctrine. This is a captured court by interests that have put these people on the court who campaigned and auditioned to get on the court by showing in every way they could that they would be obedient, solid, reliable, pro polluter, pro industry, pro right wing soldiers. And the real comparison here is to the old, you know, like a late 19th century railroad commission. It’s supposed to set rates for the railroad, but the railroad companies have put their people all on the commission so they get whatever decision they want out of the commission. And from that bad history, we have regulatory capture, sometimes called agency capture. It’s an administrative law area of study. It’s an economics area of study. And somebody figured out that, well, if you can do it to an administrative agency, why not do it to the Supreme Court? And they did.

Leah Litman So the fact that these litigants are invoking the major questions doctrine in this wide array of cases is kind of what we were alluding to when we said the bigger take away from West Virginia versus EPA might be about the courts and their weaponization against agencies more broadly. And that’s, you know, partially because while West Virginia was also a potentially significant climate decision in some of the happiest news of the summer, Congress created real federal climate policy in the Inflation Reduction Act. So maybe to partially end or, you know, begin to end on a more positive note. Senator, do you want to tell us about some of the climate measures or climate policy in the Inflation Reduction Act?

Senator Sheldon Whitehouse Well, most of it is in supports for investment, whether it’s a homeowner trying to make their appliances more efficient and put solar on the roof, or whether you’re a affordable housing entity to try to make your properties more efficient for your tenants. Or if you’re a business trying to change over how your business runs, how your manufacturing process goes to be more efficient, we support that huge tax credits extended in time so that they can be relied on better by clean energy interests. Solar, wind, battery. And then the one that has a little bit of teeth to it left is my methane fee now called the methane program. But it does put a pretty significant penalty, starting at $900 per equivalent per ton on methane leakage, because you have all these fossil fuel companies, when it’s free to just bleed methane into the atmosphere, they just do it. Sometimes they don’t even bother to light it and flare it and turn it into carbon dioxide. They just burn it. And this will give EPA and I think probably Clean Air Act litigants also tools to go after them and put a cost on pollution. So to me, that’s the biggest part of this, because we actually put a price on pollution instead of making it free to pollute. And these industries have counted on it being free to pollute forever. And they’ve used the money that they’ve saved from not having to clean up their act, to instead go by Congress to make sure that Congress kept it free to pollute. And this was a big, big chunk cut out of that armor.

Melissa Murray Are you worried that regulated industries will challenge these aspects of the act, or do you think it’s sufficiently insulated from judicial review?

Senator Sheldon Whitehouse We made it pretty clear and where Congress is taxing and where Congress is spending money, there’s usually a lot of authority left to Congress to make those decisions. And then, of course, you know, some of our colleagues made sure that there is some pretty sweet industry stuff in there. So there’s a little bit of you know, there’s some stinkers in there with The Good Stuff. So I think it’ll hold up pretty well. I actually think that our next phase, frankly, needs to be the Biden administration getting much more robust. On the regulatory side with respect to purchasing and acquisitions, with respect to regulation of emissions, with respect to social cost of carbon, with respect to carbon border adjustment, and with respect to taking a good look for the first time, an honest look for the first time, and what the Department of Justice might be doing. There’s litigation about climate all over the country and you go like, you want to go knock on the DOJ door, say, are you even looking? Do you even notice how many states have sued the fossil fuel industry? Have you advised the president whether or not that would be a good idea for you to look into? And they have a really good precedent to start with, which is their tobacco case, which was super successful, crushing victory, and came out with a court order from a wonderful judge on the U.S. District Court for the District of Columbia, saying to the tobacco industry, Thou shalt no longer lie about the dangers of your product. Now, if we can get an order like that against the fossil fuel industry, thou shalt no longer lie about the dangers of your product. That would be just as transformative as it was for the tobacco industry. And the fact that the Biden administration has not even taken an honest look at that yet, I find inexplicable.

Leah Litman One more piece of that agenda that sounds like it’s required to achieve that goal would be to fill up these vacancies on the federal court so that when these cases are heard and filed, they are heard by judges who, let’s say, are not taking their cues from a coordinated advocate’s campaign.

Senator Sheldon Whitehouse And on that, we are running at a faster pace than the Trump administration at filling judges in the Senate Judiciary Committee. So we’re working very hard to get that done and to keep them the positions filled just as quickly as we can with people who are talented, who are diverse, both in their backgrounds and in their practices, and who are going to follow the rule of law.

Leah Litman Hear, hear.

Melissa Murray You all have been doing a great job and it’s absolutely fantastic effort. And we’re seeing it pay off in some really important ways, just in the shape of the judiciary and what it looks like. It’s really been amazing. One final question for you, Senator. You may be aware of this, but Justice Alito recently delivered another incredibly angry and bitter speech attacking those who criticize the court’s ruling over the court’s ruling in Dobbs, overruling Roe and Casey. And among those that he singled out included the Duke of Sussex, Prince Harry, which is why I’m mentioning it on this podcast. This is probably the first Alito speech in which you were not name checked.

Senator Sheldon Whitehouse I know I’m feeling a little jealous. I was.

Melissa Murray Like, How does it feel to.

Senator Sheldon Whitehouse Have. He obviously looked at Prince Harry’s profile and thought, Well, I was going to get a lot more attention if I criticize Prince Harry than if I do this like Senator Whitehouse guy who I’ve been busy kicking away at.

Melissa Murray I mean, I was going to ask you, how does it feel to be displaced? And I know he knows by now.

Senator Sheldon Whitehouse You know, he is a touchy guy, that Alito. He is a touchy little guy.

Melissa Murray Indeed. Um.

Leah Litman Maybe that is where we end.

Melissa Murray He is a touchy little guy.

Leah Litman So maybe that will get you back into the speeches. Senator. So for listeners who would like to hear more about captured courts and the campaigns to overtake them, be sure to check out Senator Whitehouse’s forthcoming book, The Scheme How the Right Wing Used Dark Money to Capture the Supreme Court, which is going to be published in October. Thank you so much for joining the podcast, Senator.

Senator Sheldon Whitehouse Great to be with you.

Leah Litman After we recorded this episode, a few pieces of news dropped that are relevant to the episode. First, The New York Times reported that none other than Leonard Leo, the other L.L., had received 1.6 billion. Yes, you heard that right. Billion dollars that he’ll be able to use to further the Republican’s political and legal agenda. That money was given to Leo’s Marble Freedom Trust through a corporate transaction arranged by an electronics magnet. Leo, of course, is the person who leveraged a bunch of dark money to mount the successful Republican takeover of the courts. He’s since moved on to also using dark money to advance restrictions on voting. This is an insane amount of money that will be used to further the Republican’s political and legal agenda for decades to come. Hey, somebody’s got to bankroll Leonard Leo’s list, I guess. Second, the senator from Cancun, Ted Cruz, seemed to start off something of a misinformation campaign when he said of the recently passed Inflation Reduction Act, quote, The Democrats are trying to overturn the Supreme Court’s West Virginia versus EPA victory. Put aside for a second the oddity of describing a case as a Supreme Court victory or as the Supreme Court’s victory. What Senator Cruz suggested was also what some other commentators have suggested, namely that the Inflation Reduction Act somehow overturned the decision by defining greenhouse gases as air pollutants that can be regulated. But as listeners of this show know, West Virginia versus EPA did not say that the EPA could not regulate greenhouse gases. It just said that the EPA couldn’t regulate greenhouse gases in a particular way, namely by adopting generation shifting requirements that force power plants to produce energy using methods other than coal. Nothing in the Inflation Reduction Act gives the EPA the authority to adopt generation shifting requirements. Congress, therefore, didn’t overturn West Virginia versus EPA, even though the Inflation Reduction Act did take considerable steps to reduce pollutants from greenhouse gases by investing in and creating additional incentives to invest in cleaner energy sources. Third, and finally, President Biden announced significant steps to cancel some student debt and significantly reduce other student debt. We won’t go into all of the details here, but did want to note that the measures he took both reduce debt for groups particularly burdened by student debt and take steps to constrain interest rates that can get out of hand for almost everyone. The Office of Legal Counsel at the Department of Justice released a memo explaining the President’s authority to cancel and reduce student debt. The authority relies on a statute that gives authority to the Secretary of education. With that, you say a statute granting authority to an administrative agency? That’s right. And so commentators have wondered whether anyone might try and challenge the Biden administration steps to reduce student debt on major questions grounds. The doctrine West Virginia versus EPA announced that could seriously limit agency’s authority. So stay tuned there, especially because district court in Texas just last week invalidated president biden’s guidance about tala. That guidance had directed hospitals to provide abortion care where necessary to ensure a patient’s life, health and safety even in states that otherwise restrict abortion. The court said the guidance could not be applied in Texas, and the judge who issued the ruling was appointed by President Trump. Some fun news before we go. Crooked Media has partnered with comfortable, sustainable shoe brand Cariuma to create two awesome pairs of shoes that listeners of Strict Scrutiny will love. One design features an all over “I voted” sticker print so you can go doorknocking and make your way to the polls in style. Another design is a sleek white pair that says “No steps back” on the sides. You can let everyone know why you’re there and what’s about to go down at the polls. You can order your pairs today in the Crooked store. And as always, a portion of the proceeds from these shoes and any item you buy in the Crooked store goes to VoteRiders, the leading organization focused on voter ID. Go to Crooked.com slash kicks to order your pair.

Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray, and Kate Shaw with production and editing by Melody Rowell, Audio Engineering by Kyle Seglin Music by Eddie Cooper and production support from Michael Martinez, Sandy Girard and Ari Schwartz. Digital support from Amelia Montooth and Intern Summer Support from Anoushka Chander.