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Reasonable Moderate Sam Alito!

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In addition to Trump embracing Steinesque anti-vaccination silliness that Scott mentions below (and that was in the original draft of this post), we have Reasonable Moderate Sam Alito understanding basic science.

Supreme Court Justice Samuel Alito delivered a fascinating keynote speech at the Claremont Institute’s 2017 annual dinner on Saturday night. Alito, who received a Statesmanship Award from the conservative think tank, devoted much of his address to criticizing his bêtes noires, including environmental regulation, affirmative action, the “media elite,” the European Union, and emergency contraceptives.

But then Alito went off the rails. He declared that he would provide two examples of this alleged regulatory overreach. The first was a fair illustration of his point, involving water regulation by the Environmental Protection Agency. The second was Massachusetts v. EPA. In that case, the Supreme Court found that carbon dioxide is a “pollutant” within the scope of the Clean Air Act, allowing the EPA to regulate it. Alito dissented from the 5–4 decision. And in his speech on Saturday, he summarized his frustration with the majority opinion:

Now, what is a pollutant? A pollutant is a subject that is harmful to human beings or to animals or to plants. Carbon dioxide is not a pollutant. Carbon dioxide is not harmful to ordinary things, to human beings, or to animals, or to plants. It’s actually needed for plant growth. All of us are exhaling carbon dioxide right now. So, if it’s a pollutant, we’re all polluting. When Congress authorized the regulation of pollutants, what it had in mind were substances like sulfur dioxide, or particulate matter—basically, soot or smoke in the air. Congress was not thinking about carbon dioxide or other greenhouse gases.

Alito’s comments here are straight out of the climate change denialist playbook—and were rejected in Massachusetts v. EPA, for good reason. The Clean Air Act defines “air pollutant” as “any air pollution agent or combination of such agents, including any physical [or] chemical … substance or matter which is emitted into or otherwise enters the ambient air” and “may reasonably be anticipated to endanger public health or welfare.” In its decision, the Supreme Court correctly recognized that carbon is a “chemical substance or matter” that is “emitted into” the air and “endanger[s] public health” by contributing to rising global temperatures. There is no textual support for Alito’s assertion that the law was meant to be limited to “soot or smoke.”

But what’s really odd about Alito’s comments on Saturday is that he seems to have forgotten key details of the case. Massachusetts v. EPA was not, contra Alito’s intimation, an example of “a massive shift of lawmaking from the elected representatives of the people to unelected bureaucrats.” To the contrary: The case marked a departure from the usual deference that courts afford administrative agencies. Instead, it constituted a triumph of an independent judiciary. What Alito forgot to mention in his speech was that, at the time, the EPA refused to regulate carbon. Massachusetts, already suffering from the effects of climate change, sued the EPA, demanding that it enforce the Clean Air Act. Those “unelected bureaucrats” at the EPA were refusing to enforce a law passed by the people’s “elected representatives.” And the judiciary stepped in to ensure that the bureaucrats followed the law.

It’s a real wonder the Republican Party hasn’t repudiated Trump….

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  • efgoldman

    This is kind of the reverse Ben Carson.
    The world’s top neurosurgeon doesn’t know shit about anything else, and had fantasiess about history and other things.
    One of the country’s top :::cough::: jurists doesn’t know shit about science, or other things.

    [The fact that he apparently doesn’t know the law, either, is a different problem.]

  • Mike G

    Do you mean to tell me that “conservative” ideology is based on blatant lies, willful ignorance and mendacity?

    • efgoldman

      Do you mean to tell me that “conservative” ideology is based on blatant lies, willful ignorance and mendacity?

      Oh my stars and garters, NO!

    • veleda_k

      Next, you’re going to tell me that there’s been gambling going in here!

  • Warren Terra

    All of us are exhaling carbon dioxide right now. So, if it’s a pollutant, we’re all polluting.

    I hope this doesn’t shock your delicate sensibilities, as I’m sure you have all risen above such crass habits, but I have on occasion been known to defecate.

    • trollhattan

      No shi…uh yes…shit in small amounts is good for plants, just as CO2 is needed in small amounts. If judge Alito would care for me to drop a load in his water supply, or pump CO2 into his house via the mail slot then perhaps he might expand his world view on how a good thing in small amounts become toxic in greater.

      Science class requirement for law degrees, stat!

      • rhino

        Wait… There is no requirement for basic sciences to enter law school?

        I doubt you could get into any university program in Canada without two grade 12 science classes, grade 12 maths and a few others things. That’s more than enough to understand carbon dioxide as a pollutant.

        • lizzie

          Law school is a post college degree. You have to have taken science to get into college. At least, iirc. It’s been awhile.

          • trollhattan

            Supposedly getting into a four-year degree program requires three years’ high school science with no specification of which subjects. Far as I know an undergrad pre-law track requires none.

            Presumably, if you were skewhled in Texas or Kentucky you’d enter university knowing the world is 6k years old and Jesus rode dinosaurs.

      • Mike G

        You’ve forgotten the stupidification factor of right-wing dogma, where you ignore anything you don’t want to believe, make up shit you want to be true; and bullshit and bully your way through every public speech.

      • sigaba

        If judge Alito would care for me to drop a load in his water supply, or pump CO2 into his house via the mail slot then perhaps he might expand his world view on how a good thing in small amounts become toxic in greater.

        Dose makes the poison. Alito’s arguing an essentialist position, though. Quantity is irrelevant, pollution is intrinsically pollution at any amount, non-pollution is intrinsically that, at any amount.

        This is how these people start talking about our “national blood” and so on.

        • So what is these people’s argument against regulating lead and plutonium, for which there are IIRC no safe minimum doses?

  • DAS

    Since carbon dioxide is so harmless, I imagine that it could not be considered a threat if I suggest that Justice Alito be sealed in a room having an atmosphere of 80% carbon dioxide and 20% oxygen?

    • Warren Terra

      So, I was looking up the recommended safety limits for CO2 concentration, and found this page, which says 0.1% for continuous exposure, 1% for a work shift, and 3% for ten minutes. This surprised me, as I thought 0.1% was the normal concentration (turns out it’s between a third and a half of that).

      In any case, your hypothetical is vast overkill.

      • Sev

        Fine. Let’s go with Warren’s suggestion then; the sewage.

      • Downpuppy

        Yep. 0.1% is 1000 ppm. Mauna Loa CO2 is just passing 400.

        1000 is fairly common indoors, and occasional in high traffic urban areas.

    • alexceres

      Since science is just liberal propaganda, what can it hurt to conduct a couple experiments on Alito with harmless non-pollutants ?

  • Murc

    The closest thing Alito has to a point is that he’s probably correct that the writers of the Clean Air Act, first authored in the 60s and last amended, I believe, in the 80s, probably didn’t intend to regulate carbon dioxide as a pollutant. Yes. I accept that logic.

    My response to it is: so fucking what?

    I don’t care what they intended. I care what they actually wrote down. Legislative intent isn’t useless; it is a valuable tool when the law is unclear or if there’s a real question about applicability.

    But absent those situations, it should count for basically jack shit. I don’t want judges doing mind-reading of dead people unless absolutely necessary. That opens the door to incalculable mischief.

    • rea

      I don’t care what they intended. I care what they actually wrote down.

      Oddly, this is part of Scalia’s theory of interpretation. Congress said “moops,” so “moops” it is.

      • Murc

        Hence my disclaimer:

        Legislative intent isn’t useless; it is a valuable tool when the law is unclear or if there’s a real question about applicability.

        See also the doctrine that laws shouldn’t be read to produce absurd results.

        And even that notwithstanding, in the case of the ACA the card didn’t actually say Moops. If it had said Moops it would have been a much stronger case, but it did not.

        And that’s before we even get into the fact that Scalia didn’t have a theory of interpretation. He had post-hoc justifications for ruling in ways that upheld Republican orthodoxy. There’s nothing wrong with that as a judicial doctrine per se (well, there is, but from a policy rather than process perspective) but he couldn’t even be arsed to be honest about it.

        • rea

          Scalia didn’t have a theory of interpretation. He had post-hoc justifications for ruling in ways that upheld Republican orthodoxy.

          Scalia actually had a theory of interpretation, which he talked about at great length, and ignored whenever it suited his partisan interests.

          • Denverite

            Scalia actually had a theory of interpretation, which he talked about at great length, and ignored whenever it suited his partisan interests.

            Indeed, Scalia discussed his theory at length going back to before when he was on the DC Circuit. And it’s not necessarily a bad theory, though as Posner pointed out in recent years, it tends not to be as fabulous in practice when different people have different “plain and ordinary” understandings, different dictionaries offer different definitions, etc.

            • vic rattlehead

              And having worked for a legislator, I can say that in my view “legislative intent” is way too easily ratfucked to be reliable the way Scalia wanted it to be.

              • Denverite

                Unless I’m misunderstanding you, Scalia’s position is 100% the opposite of what you’re imputing to him. He thought the legislative history was worthless because legislators could always game the system and put poison pills in it.

                His view was that legislative intent was best ascertained from the text of the statute — not because that was infallible by any stretch, but because it was the best of a bunch of bad option.

                • vic rattlehead

                  Wow that was one hell of a brain fart. Yeah that was one of the few things I agree with Scalia on. I also think Employment Division v. Smith was correctly decided.

                • Breadbaker

                  Like every hard and fast rule, it’s silly to apply it unthinkingly. As Bill James said in another context, legislative history shouldn’t be used the way a drunk uses a lamppost, for support, not illumination.

                  A statute that comes up in my practice all the time has some words that are not defined all that well. There was a colloquy on the floor of the Senate between a supporter and a Senator who was confused about the language, and the supporter gave an interpretation that is certainly among the likely ways to read the statute. Is that absolutely conclusory? No. But should a judge be free entirely to ignore it and come up with his or her own interpretation without reference to it? Also, no.

            • rm

              As a person who had to study literary theory a long time ago, I can tell you with real authority that “plain and ordinary” “literal” “originalist” readings of any text are impossible. Anyone who thinks he is reading that way is in denial or ignorant.

              • Breadbaker

                More likely (and this would describe Nino pretty well) arrogant.

    • delazeur

      The closest thing Alito has to a point is that he’s probably correct that the writers of the Clean Air Act, first authored in the 60s and last amended, I believe, in the 80s, probably didn’t intend to regulate carbon dioxide as a pollutant.

      The people who wrote the law very clearly allowed for the possibility that new air pollutants might be discovered and be worth regulating, and they very clearly empowered EPA to identify such pollutants and issue such regulations. I don’t think anyone could read the CAA and genuinely believe that it was only intended to apply to the handful of pollutants people were worried about in 1970.

    • Bugboy

      When the Clean Air Act was passed, particulate matter was a big deal causing health issues for a great many Americans. So, let’s get rid of the particulate matter! Which as Alito says, was the intent.

      Unfortunately, when you do that, you are left with all the gases that might otherwise form a complex with particulate matter and fall out of the atmosphere eventually. As a result, acid rain, the mother of all state’s rights issues when smoke stacks in Ohio produced acidic rain over unbuffered soils of New York and elsewhere. Why GOP is so bent on undoing environmental regulations when it deals with state’s rights, one of their many fetish topics, is a mystery to me.

      It’s the dose that makes the poison, as Paracelus would say, the founder of toxicology. I’m sure Alito thinks water is harmless too, unless he’s drowning…

      • efgoldman

        Why GOP is so bent on undoing environmental regulations

        Because if people die younger, sooner, or more frequently, health care costs less.

        SATSQ

        • BigHank53

          Well, that’s one way of fixing Social Security, I guess.

          • Warren Terra

            I still think we should just bring back smoking. Everyone would look cool like Paul Newman or Robert Mitchum, and it’s been proven that cigarettes are big money-savers for public pensions, because so many smokers live a full working life and then just before or soon after their scheduled retirement they die quickly and cheaply (if horribly) of untreatable lung cancer.

        • Surely the cost of treating the increased number of diseases they’d get would undo that, though.

          Wait, you were probably being sarcastic.

    • searcher

      Fun fact: who was the first scientist to warn the public about the risk of global warming?

      Mother-effing Arrhenius, the inventor of physical chemistry at the end of 19th century. He discovered the greenhouse effect of carbon dioxide, measured the amount of carbon dioxide in the atmosphere, calculated the amount being released by burning coal, realized that amount was significant on a global scale, and said, huh maybe we should be careful here and not eff things up.

      By the time the EPA was written, scientists had the skinny on carbon dioxide for *seventy years*.

      • DAS

        I am so stealing “Mother-effen’ Arrhenius” for the next time I teach an intro chemistry class.

      • Arrhenius was a bad guy for blocking the award of the Nobel Prize to the great Russian chemist Mendeleev, the discoverer of the periodic table, so we can safely disregard anything else he said.

  • Joe_JP

    This from his questionnaire isn’t overly surprising or something but …

    Before 2005, Gorsuch belonged to the Republican National Lawyers’ Association, whose missions include “advancing Republican ideals.” He also “volunteered on various political campaigns, including for President Ronald Reagan, President George H.W. Bush, and President George W. Bush, and participated in groups such as ‘Lawyers for Bush-Cheney.’”

    Those advancing Democratic ideals, including each and every senator of that caucus, should not vote for him. Just like nearly all of them didn’t vote for Alito.

  • Snarki, child of Loki

    Alito lost whatever tiny credibility he had, when, during a FISA/surveillance case in the reign of Dubya, he argued that “even the courtroom doors in Independence Hall could be closed for sensitive hearings”.

    Alito was an appellate judge in Philly.

    And the courtroom in Independence Hall HAS NO DOORS, a point made abundantly clear by the NPS guides.

    Alito is a dishonest hack. Has been for YEARS.

    • N__B

      The doors were removed the first time the judges went to Olive Garden to sample the salad bar.

      • LosGatosCA

        I think it was the broccoli bar at Applebee’s

        • N__B

          The whiskey bar at Chuck E. Cheese?

  • anonymous

    On a scale of 1 to 10:

    1=purely principled and adjudicates based on facts and consistent judicial philosophy and works forward to arrive at an opinion regardless of desired outcome

    10=pure hack that has a desired outcome and works backwards to find ways to justify the desired opinion regardless of principles or consistent judicial philosophy

    What are the hackness ratings of all current Justices? What is Gorsuch’s perceived hackness?

    • Zagarna_84

      Kennedy: 10
      Alito: 10
      Sotomayor: 9
      Breyer: 9
      Gorsuch: 9
      Roberts: 8
      Ginsburg: 7
      Thomas: 5
      Kagan: 4

      … I don’t have a lot of respect for the Supreme Court, it would appear. Then again, as Posner has pointed out, it’s not a court; it’s an unelected super-legislature.

      Incidentally, Thomas’s place on this list demonstrates that hackishness cannot be the sole criteria by which you evaluate a judge. If your ex ante principles are sufficiently bats**t insane, applying them consistently will produce appalling results.

      • Joe_JP

        Those rankings are dubious.

        Why Kagan is so low as compared to the other liberals is unclear to me alone. Kennedy has a “consistent judicial philosophy” too. A sign there is not to be always on the liberal or conservative side unless the philosophy is “being liberal” or something. But, I’m not going to spend a lot of time to try to break down my views on nine different justices here.

        I don’t buy this “not a court” business. See, e.g., Eric Segall. The word “court” is being used in a precious way.

    • DAS

      What if your consistent judicial philosophy is that you should use whatever reasonable arguments you can to back up your pre-determined outcome?

  • Jordan

    Anytime anyone like Alito rules against anything like affirmative action, I want to punch them in the face.

    thats not really relevant for this post. But seriously, fuck him.

    • thats not really relevant for this post

      Reminds me of a tweet I saw last week:

      Lincoln had a secretary named Kennedy.
      Kennedy had a secretary named Lincoln.
      Fuck Donald Trump!

      • rea

        One trusts that you are not bringing the Secret Service down on your head.

        • bs

          Ze’s not threatenin violence to derp Führer, maybe just a pussy grab. Consent’s not needed, as long as you’re famous. Everybody here knows (((advocatethis))), therefore famous. Go right ahead and fuck donald trump all you want! /s
          (one of these days I’ll ctrl-c some sarcasm font; until then i’m old school)

  • rea

    Worse than Scalia.

  • Zagarna_84

    Alito can actually be smart when he wants to be. My employer is currently embroiled in a horrific bit of bankruptcy litigation involving “equitable mootness,” a doctrinal abomination that basically amounts to the courts saying “we have decided to tear all the pages that say Chapter 11 creditors have any rights at all out of the Bankruptcy Code and burn them in a giant bonfire, woo!” My best arguments are straight out of two Alito dissents.

    The reason why Alito is a s**t Justice is that he chooses partisanship over being smart/correct literally 100 percent of the time, so the only smart stuff he ever writes is on issues that have limited partisan valence, like Chapter 11 bankruptcy (which is mostly corporate-on-corporate crime).

    • Vance Maverick

      I believe “equitable mootness” was the title of a Pynchon novel.

  • Denverite

    I know it’s a heresy on here, but I’ve always found Stevens’s standing argument in EPA v. Massachusetts highly unpersuasive.

    *ducks*

    • vic rattlehead

      I dunno, standing is subject to a lot of ratfuckery. It’s a pretty quiet way of kicking something or worse shivving. Generally speaking if Scalia and Alito and Thomas (et al) are agin broadening standing, I’m for it.

  • humanoid.panda

    One of the top 20 most powerful men in the country, sprouting “LOL libtards, CO2 is plant food.” We are fucked.

    • Hob

      Unless you’re a lot younger than me, which I don’t think is the case, you may remember the freaking President of the United States 35 years ago telling the nation that plants cause 80 percent of air pollution, and that the EPA was suppressing evidence of this.

  • djw

    Time to dust off this old chestnut.

    Sometimes you think making fun of particularly dumb state legislators is a form of lazy nutpicking. Then, a Supreme Court Justice runs with it.

  • mikeSchilling

    What do you expect from someone with a social science degree? If only Alito had a background in STEM.

  • “Carbon dioxide is not harmful to ordinary things, to human beings, or to animals, or to plants. It’s actually needed for plant growth.”

    Water is essential for life, therefore drowning is impossible!

  • PeteW

    “When Congress authorized the regulation of pollutants, what it had in mind were substances like sulfur dioxide, or particulate matter—basically, soot or smoke in the air. Congress was not thinking about carbon dioxide or other greenhouse gases.”

    So ignorance is now a valid judicial argument?

  • mds

    Just wait until you meet Trump’s apparent top two choices for White House Science Advisor: A climate-change-denying physicist and a climate-change-denying fuckwitted shitlump of a computer scientist. The physicist one is disappointing (You’d think he’d be able to calculate the absorption and emission spectra of CO2, if nothing else), though not unheard of, but the computer scientist makes Alito look like a well-qualified expert in the physical sciences, the social sciences, and possibly computer science, by comparison.

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