Chief Justice (Taney's) Roberts' Supreme Court

[David Lockmiller]

New York Times - March 5, 2023

Guest Essay: Utah Wants to Disable the Law That Led to the Creation of Four of Its Magnificent National Parks

By John Leshy, an emeritus professor at the University of California College of the Law, San Francisco, [who] is the author of “Our Common Ground,” a political history of America’s public lands.

Professor Leshy wrote in part:

In 1906, [President Theodore Roosevelt] signed the Antiquities Act, giving presidents unilateral authority to protect “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” on public lands by setting them aside as national monuments.

In 2017, President Donald Trump reduced Grand Staircase-Escalante and Bears Ears in size by more than half. Four years later, President Biden restored them. Last August, the state of Utah filed a lawsuit in Federal District Court in Utah challenging Mr. Biden’s action. Utah’s complaint explicitly seeks to have the federal courts all but eviscerate the power Congress gave the president in the Antiquities Act.

Utah relies heavily on a statement that the Supreme Court chief justice, John Roberts‌, attached to ‌a March 2021 decision in which the court declin‌ed to ‌‌hear ‌‌a challenge to another monument created by Mr. Obama, the Northeast Canyons and Seamounts Marine National Monument, which protects submerged public lands off the New England coast. In his statement, which no other justice joined, Chief Justice Roberts wondered whether at some point the ‌court should take a closer look at how presidents have used the Antiquities Act, and in particular its instruction to protect “the smallest area compatible with the care and management of the objects to be protected.”

“Somewhere along the line,” he wrote, “this restriction has ceased to pose any meaningful restraint.”

Utah’s complaint picks up on Chief Justice Roberts’ invitation and offers a genuinely radical interpretation of the Antiquities Act. In the state’s view, the Antiquities Act gives the president authority to protect at most a few dozen acres around discrete, specific features, such as a pictograph panel, or an unusual geological formation, like an arch, and not vast landscapes, like the Grand Canyon.

Chief Justice Roberts’ superficial musings paid ‌‌no attention to the act’s vital legacy of protecting landscapes rich in natural beauty, historical significance and ecological importance. And he failed to note how, almost without exception, Congress has endorsed these presidential actions. For example, nearly half of the 63 national parks established by Congress — including such crown jewels as Bryce, Zion, Arches and Capitol Reef in Utah, Acadia in Maine and Olympic in Washington — were first protected by presidents using the Antiquities Act.

Chief Justice Roberts‌ also failed to note that both the Supreme Court and lower federal courts have consistently rejected claims that presidents‌‌ abused their Antiquities Act authority. In 1920, ‌the ‌‌Supreme Court unanimously upheld ‌‌President Roosevelt’s Grand Canyon National Monument.

[David Lockmiller]

"The Curious Rise of a Supreme Court Doctrine That Threatens Biden’s Agenda"

New York Times by Adam Liptak
March 6, 2023

The NYTimes article begins as follows:

The “major questions doctrine,” promoted by conservative commentators, is of recent vintage but has enormous power and may doom student loan relief and other programs.

It has been only eight months since the Supreme Court first invoked the “major questions doctrine” by name in a majority opinion, using it to limit the Environmental Protection Agency’s power to address climate change. Last week, the court seemed poised to use it again, to kill the Biden administration’s plan to cancel more than $400 billion in student loans.

In dissent in the climate case, Justice Elena Kagan wrote that the majority had engaged in a sleight of hand. When ordinary legal principles fail to thwart disfavored programs, she wrote, “special canons like the ‘major questions doctrine’ magically appear.”

The idea behind the major questions doctrine is that Congress must speak particularly clearly when it authorizes the executive branch to take on matters of political or economic significance. But what makes that idea a doctrine?

A timely new study traces the rapid and curious rise of the major questions doctrine, spurred by conservative scholars and commentators and driven by hostility to administrative agencies.

“The phrase was used just once by any federal judge before 2017, and in only five federal decisions — at any level of court — before 2020,” Allison Orr Larsen, a law professor at William & Mary, wrote in the new study, “Becoming a Doctrine.”