In Double Indemnity, insurance claims manager Barton Keyes (played by Edward G. Robinson), tell his ace salesman, Walter Neff (played by Fred MacMurray) that he’s figured out that the man they insured didn’t die from an accident after all: “It’s murder, and murders don’t come any neater. As fancy a piece of homicide as anybody ever ran into.” Neff pales because he’s the killer. He did it for the love of Phyllis (Barbara Stanwyck); she did it for the love of insurance money.
Later, Keyes tells Neff: “They’ve committed a murder. And it’s not like taking a trolley ride together where they can get off at different stops. They’re stuck with each other, and they’ve got to ride all the way to the end of the line and it’s a one-way trip and the last stop is the cemetery.” Neff knew it himself. The night of the crime, he reflected: “Suddenly it came over me that everything would go wrong…. I couldn’t hear my own footsteps. It was the walk of a dead man.”
That’s what six justices of the U.S. Supreme Court should have heard today. In West Virginia vs. Environmental Protection Agency, they voted to limit the authority of the EPA to issue rules stopping or limiting the release into the air of carbon dioxide and other greenhouse gases that are rapidly heating the planet. Instead of the E.P.A. — established by law in 1970 to protect the environment — it would be Congress, according to the ruling, that must issue these regulations. Invoking an entirely fictitious “major questions doctrine”, Chief Justice Roberts, speaking for the majority, claimed to be curing a “recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” In fact, as Justice Eleanor Kagan argued in dissent, Congress expressly empowered the EPA to act to protect the environment because legislators cannot – they lack the time or expertise to draft complex rules. That’s what government agencies are for. As Kagan wrote (with some snark): “It is EPA (that’s the Environmental Protection Agency, in case the majority forgot) acting to address the greatest environmental challenge of our time.”
To be sure, Kagan was shadow boxing here. There currently is no regulation “to address the greatest environmental challenge of our [or any other] time.” The EPA and the executive branch – to their shame – simply haven’t gotten around to it. In 2015 – seven years after his inauguration — President Obama established a Clean Power Plan to transition utilities away from fossil fuels, but it was challenged a little more than a year later by the Trump administration and halted by the high court. Trump’s EPA in 2019 issued an Affordable Clean Energy Rule that was in fact a sop to the coal industry. Biden never reintroduced the original Obama plan, or any another, and the EPA has sat on its hands since then too. Biden’s only significant attempt at limiting greenhouse gases is found in his Build Back Better infrastructure bill, still held up in the Senate by Joe Manchin (aka Coal Mansion) of West Virginia.
Nevertheless, the willfulness, arrogance and irresponsibility of today’s ruling is staggering. In W.VA vs EPA, the court violated the bedrock constitutional principle of division of powers. In striking down a regulation that doesn’t even exist yet, the court was usurping the authority of both the legislative and executive branches; it overrode the clear intent of Congress in establishing the EPA and assumed the role of cabinet secretary by making up a hypothetical environmental rule and then striking it down as unconstitutional.
But far worse than all the procedural, regulatory and constitutional mishigas is the likely impact of the ruling: Government paralysis in the face of the greatest threat that humans have ever known. Global warming already exceeds 1.2°C since pre-industrial times, and is certain to rise much more unless dramatic action is taken soon: to 1.5°C by 2035 and 2.00°C by 2050, if not higher. Heat, drought, and fire, paradoxically paired with more frequent and intense hurricanes, high tides, and flooding, will displace, and impoverish hundreds of millions, if not billions of people. The current die-off of non-domesticated animals and mass extinction of species will accelerate. In many parts of the world, water will be unavailable either for energy or irrigation. At 2.0°C and higher, heat will become a major, global killer, as will water-born and vector-borne diseases.
The impacts of global warming will be greatest in the southern hemisphere, but the northern will hardly be exempt. As temperatures rise above 2.0°C later in the century, coasts and sea-islands in North America, Europe and Asia will be inundated and mass migrations will follow. Wars over food and water will be fought within and between nations states. Negative climate feedbacks, also called climate tipping points – for example, the loss of Arctic permafrost (with consequent release of methane), and the melting of Antarctic and Greenland ice caps — will trigger sudden leaps in both temperature and sea level that no amount of planning or adaptation can manage. To call the world of 3.0°C to 6.0°C rise chaotic would be generous in the extreme – a better word would be apocalyptic.
The Supreme Court took this reckless action to tame what the far-right calls “the administrative state.” That’s the edifice of government regulation and planning that today manages, just barely, to constrain capitalist exploitation and prevent the worst corporate assaults upon the safety of workers, public health, and the environment. That regulatory infrastructure will need to be vastly strengthened and augmented if we are to devise a model of production and consumption that will allow us to avoid the crisis scenarios described above. That’s the administrative framework that the court set a torch to today. But the court is not immune to the impact of its own verdicts. Justices Thomas, Roberts, and Alito may be old enough to escape the whirlwind they have loosed, but the other three conservative justices are not.
“They’ve committed a murder. And it’s not like taking a trolley ride together where they can get off at different stops. They’re stuck with each other, and they’ve got to ride all the way to the end of the line and it’s a one-way trip and the last stop is the cemetery.”
The Supreme Court today enacted a “fancy piece of homicide.”
There are alternative endings to this judicial noir. They entail radical reconstruction of the court – expanding its membership (assuming there is a progressive president to make those appointments), term limits, constitutional amendments, and impeachment. There is also the possibility of Executive Orders, Congressional and administrative work-arounds, and simple nullification – the Supreme Court has no army, and the U.S. Attorney General and the 93 U.S. attorneys across the country can simply ignore these obnoxious ruling by the high court. A simpler and more direct response to the crisis of a rampant Supreme Court is mass action: protests on a scale never seen, to match the scale of a crisis never before known. If only 10% of the U.S. population impacted by this ruling became mobilized, this unjust Court and its legislative and corporate accomplices, might accede to the wider wisdom. Perhaps even now, a few of the six, offending justices, in the privacy of their own company, have begun to hear their silence of their own footsteps.