The Earth Needs Good Judges. Here’s What That Means.
President Biden has been working hard to nominate the new leaders of the executive branch and get them confirmed. I’m hoping to see him start nominating judges to the federal bench soon. He can start with the D.C. Circuit Court of Appeals, which has a brand-new vacancy thanks to the confirmation of Attorney General Merrick Garland. In total, there are 100 federal court vacancies right now, including a dozen current and future circuit court seats.
Courts are critical institutions in the fight against climate change and for environmental justice. Unlike some other areas of law, there is no easy litmus test to tell if someone will be the kind of judge who is good for the environment, no one decision (like Roe v. Wade) or one law (like the Sherman Act) or even one constitutional provision (like the Fourth Amendment) to grill a nominee about.
But that doesn’t mean we can’t identify who we want to have deciding cases about the future of our planet and our health. Here are three questions that I think the Biden administration should be asking itself as it looks for judges who will support its environmental and climate agenda, along with one bonus question—about the “X factor”—to separate potentially good judges from potentially extraordinary ones.
Does the candidate recognize that the government has a responsibility to protect the environment, public health, and public lands for all people?
One of the most important areas where we need government to regulate private conduct is in the environmental arena. What you do with your patch of land affects what I can do with mine, what you discharge into the air and the water affects my health, and your energy generation and ecosystem impacts all affect my future. We need the federal government to make consistent national rules to regulate these things and to enforce those rules evenhandedly across the country.
A good judge doesn’t need to be hostile to industries like Big Ag, Big Oil, and Big Coal. But they do need to believe that Congress has broad legislative authority under Article I to regulate them in the public interest. They also need to believe that Congress can delegate to the executive branch the authority to issue enabling regulations. And when they try to understand what Congress was trying to achieve, a judge should be willing to consider any evidence that might help them in that task.
These aren’t revolutionary beliefs. To the contrary—they represent the governing judicial philosophies of the Warren, Burger, and Rehnquist courts, which presided over fifty years of sustained economic growth and environmental progress.
Can the candidate tell the difference between science and politics?
Good science and careful factfinding begets good environmental policy. If you need proof, consider the fact that one of our most effective environmental laws—the National Environmental Policy Act (signed by Richard Nixon)—doesn’t actually require the government to protect the environment. It just requires the government to consider the environmental impacts of decisions before making them, and to do so based on facts, science, and public input. Not politics.
This is why so many of our environmental laws require federal regulators to build a record of the work they did in reaching at their decisions. What factors did the government consider? Did it involve local communities? Why did it reject alternative options? This record gives judges the ability to make sure that the agency acted based on facts and science, not politics. A good judge has to be willing and able to scrutinize that record for factual and legal integrity without merely replacing the agency’s policy judgments with their own. More generally, a good judge should respect not just the scientific expertise of agencies, but the consensus of science itself.
Does the candidate understand that individuals need access to courts to hold government and industry accountable?
If there’s one thing the Trump administration proved, it’s that strong environmental laws aren’t enough on their own. People need to be able to hold government accountable for upholding and following those laws, and, when necessary, sue industry itself to comply with them. That’s why most of our environmental laws explicitly authorize citizen suits.
You will not be surprised to hear that polluting industries and their politician friends generally hate citizen suits. And one way to escape accountability is by making it impossible to bring those suits in the first place—among other things, by twisting doctrines like standing, ripeness, and finality into locks on the courthouse doors.
We need judges who recognize that access to the courts is a basic right no different than access to the ballot box. In particular, we need judges who recognize that poor communities and communities of color are disproportionately affected by environmental harms—and that the legal rights those communities have won’t mean much if they can’t use the courts to enforce them and provide a check on corporate interests and power.
Does the candidate have … the X Factor?
While these three things are critical features of a good judge, history shows us that the best judges have one more characteristic: they influence the law beyond the scope of their own individual decisions. Appellate judges who sit on panels should be able to persuade colleagues through thoughtful behind-the-scenes reasoning and by building relationships across philosophical divides. District court judges should be able to write opinions that persuade appellate judges, even ones who do not generally share their point of view. And even if these judges don’t win in the short term, they should know how to play the long game by writing eloquent opinions that shift legal doctrine and provide a roadmap to a better future.
Love him or hate him, Justice Scalia had this “X Factor,” as did Justice Oliver Wendell Holmes (who you can thank whenever you mention the idea of yelling “fire!” in a crowded theater). They both knew how to write to the future, and they had the intellect, interpersonal skills, and a way with words that gave them an outsized role in the present.
If you’re reading this blog post, you know that the earth needs a good lawyer. It needs a good judge, too—lots of them. Ones who aren’t afraid to grapple with the science and follow where it leads, who believe that the courthouse doors should be open to all, who believe we have the power to come together as a country and solve big problems. And, if we’re very lucky, ones who our great-grandchildren will quote when we’re long gone.