Moving swiftly to try to keep alive a wide-ranging constitutional challenge to government climate policies, lawyers for 21 children and teenagers told the Supreme Court on Monday that the trial they are seeking will in no way interfere with the federal government’s operations and will not put any high official on the stand to testify. The filing was sent to the Court two days before a deadline they were given for a reply to the Justice Department’s new plea to the Justices to throw out the case completely, with no trial.
The overall theme of the response was that the ten-week trial, now set to open on October 29, would not involve a deep judicial intrusion into the constitutional duties of the other two branches — the President’s Cabinet and other government agencies and Congress. That was clearly designed as an answer to Administration lawyers’ argument that a federal trial judge in Eugene, Ore., is trying to usurp the powers of the other federal branches in an unconstitutional takeover of energy and environmental policy choices.
But there was another, bolder theme: that the Administration is attempted to thwart the powers of the courts to decide constitutional cases, like those that ended racial segregation in the nation’s public schools. “The political branches,” the filing argued, “may not wield their power at the expense of our liberties. Our independent judiciary, beginning with the capable district court, must be the bulwark against abuses of power and speak for the Constitution and for the children of America.”
The case has been unfolding for more than three years in the court of District Judge Ann L. Aiken, who has most recently cleared the case to go to trial in one week. The central claim of the young people for whom the case was filed is that they have a constitutional right to “a climate system capable of sustaining human life,” and that government policies extending back over decades have violated that right by leading to increased concentrations of greenhouse causes that have led to harmful global warming.
While making the effort to protect the prerogatives of the federal courts to hear and decide constitutional claims, the new legal brief plainly attempted to assure the Justices that Judge Aiken is not pushing judicial powers in a way that will threaten the political branches’ authority to continue to choose policy options, so long as those do not violate the Constitution.
Those who sued, the document contended, “did not bring this case to ‘wrest fundamental policy issues of energy development and environmental regulation affecting everyone and thrust them into the supervision of the federal courts.’ ” Those quoted words are taken from the Administration request for the Supreme Court to end the case now.”
The children and youths, the document added, “fully expect the political branches to manage their house and their discretion, but in a manner that does not deprive these children of their fundamental rights under the Constitution.”
To the Administration’s arguments that merely putting the case on trial will result in a serious disruption of federal agencies’ policy-making options, the new brief for the children and youth said there will be no attempt to probe for any confidential information or to delve into internal working papers of the federal agencies involved in energy and environmental policy.
If the Justices allow the trial to go ahead, the new filing asserted, it “will not result in the release of any confidential documents or documents subject to executive privilege”or other legal “privileges”that insulate intal government workings to public exposure. “Nor will any federal witnesses be called to discuss privileged communications. Indeed, the only federal witnesses designated to be called are those who will authenticate publicly available government documents, none of whom is a high-level political appointee.”
To the Administration’s alternative argument that it will cost considerable sums of money for the government to defend itself against the constitutional claims, the new filing argued that it is one of the reasons for the Justice Department to exist “is to defend cases brought against the United States.”
As part of their new filing, the lawyers for those who sued argued that the children and youths are being harmed daily by the harmful effects of global warming. “Time is running out for these children and every day matters,” it contended.
Further developments in Judge Aiken’s court and the start of the trial were temporarily blocked last Friday by Chief Justice John G. Roberts, Jr., but only until the lawyers for the children and youths had a chance to respond. Roberts ordered the response to be submitted by Wednesday, but the lawyers involved moved rapidly to file on Monday morning. The Administration will now have a chance to file a reply before the Justices act further.
It will take the votes of five Justices to further block the proceedings in Judge Aiken’s court. If the Justices were to accept review of the case now, on the fundamental point of whether the case should be dismissed outright, it apparently would take only the votes of four Justices to grant such review. A grant of review would not necessarily signal how the Supreme Court ultimately would rule, but it probably would be accompanied by an order further delaying the trial.