By Robert Schlesinger
the supreme court of the united states
The U.S. Supreme Court session that ended in June will be remembered as one of the most consequential in history, with the justices handing down landmark decisions on charged topics such as environmental law, guns, and abortion. Members of the Suffolk Law community have frequently played a role in these issues as experts and advocates. Here are three examples:
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Photograph: Adobe Stock
winter 2023
The Court’s new regulatory doctrine
Steven Ferrey saw it coming. When the Supreme Court delivered a bombshell decision in late June limiting the ability of the Environmental Protection Agency (EPA) to regulate power plants’ carbon emissions, the Suffolk Law professor did not see it as the spasm of a newly empowered conservative majority. He viewed it as the culmination of a trend he has been following for much of the last two decades, punctuated by three recent Supreme Court decisions on the EPA’s lack of authority to improvise on climate controls.
The decision signals a new judicial doctrine, he says, with massive ramifications reaching beyond environmental regulation to the government’s balance of powers and the spread of gridlock more broadly.
At issue in the specific case, West Virginia v. EPA, is how much leeway an executive branch agency, in this case the EPA, has in implementing laws like the Clean Air Act. After Congress passes a law, such agencies promulgate regulations detailing how the law will be enforced, potentially raising separation-of-powers issues between the executive branch and the legislature that the High Court must settle. In this case, the Obama administration had used powers Congress gave the EPA under the 1970 Clean Air Act to try to deal with the 21st-century issue of climate change. Critics said the administration overstepped the authority Congress had delegated in the original law. The dispute ultimately turned on the so-called “Chevron doctrine,” after the 1984 case Chevron v. Natural Resources Defense Council. Since that case, administrative agencies have had broad discretion to implement the details of legislation as long as they do not ignore clear direction from Congress.
The West Virginia v. EPA decision developed a new “major question” doctrine: On issues that affect “major” portions of the economy, agencies now can only act when they have explicit legislative authorization from Congress.
“It really reinstitutes the original constitutional separation of authority,” Ferrey says. “The Congress now has to specifically delegate and deliver authority to the president and executive branch on any major question that affects a substantial part of the U.S. economy. There’s probably nothing that affects the U.S. economy more than electricity.”
The Court has been moving in this direction in recent years as presidents have increasingly tried to act where Congress has proven unwilling or unable to do so. “I’ve got a pen and I’ve got a phone,” President Barack Obama famously said in 2014, asserting his willingness to push forward his policies. Earlier cases involving the EPA’s ability to regulate carbon had foreshadowed this landmark ruling, Ferrey says. “The writing was on the wall.”
This could institutionalize the very gridlock that has prevented Congress from dealing with issues such as climate change. “This is really putting some new limits that we haven’t seen in recent history on the discretion of the president,” Ferrey says.
The ruling, he adds, doesn’t mean that presidential administrations won’t be able to enforce existing laws such as the Clean Air Act. But it does mean that they’ll need more explicit action from Congress to do so. This will cause more polarization between the branches of government, “with the Supreme Court as the arbiter,” he says. “It means more litigation if nothing else.”
The way forward on guns
This year has brought forth a mixed verdict in the ongoing conflict between gun control and the right to bear arms. In February 2022, families of the 2012 Sandy Hook Elementary School shooting reached a $73 million settlement with Remington, which manufactured the AR-15 assault rifle the killer used. In June, the Supreme Court struck down a New York law that restricted the ability to carry guns in public.
For Josh Koskoff, JD ’94, the two results present a road map for tackling gun violence: focusing on lawsuits against gun manufacturers over government regulation. “The government has been uniquely and almost historically impotent” on the issue, he says, making a political approach a nonstarter in combating rampant gun violence. “The solution to our incredibly devastating and shameful epidemic is not through government, but through essentially free market pressures.”
Koskoff would know: He was the attorney who brought the case that resulted in the landmark Sandy Hook settlement. The crux of Koskoff’s case relied on marketing—that is, how Remington branded its weapons and what audience it targeted. Until 2005, he says, Remington sold around 100,000 AR-15s annually. After that, however, sales took off and rose to some 2 million per year by 2012.
“The inflection point was the marketing change,” says Koskoff, as Remington focused on “creating an emotional connection with buyers around masculinity and violence.” Ads went from sober and technical to provocative and aggressive, featuring slogans such as “Forces of opposition, bow down,” and “Consider your man card reissued.”
“Much of that audience was the younger demographic,” Koskoff says, which the company pitched directly through “the internet and then the first-person shooter games.” His “linchpin” moment came when he was perusing photos of the elementary school crime scene and saw two 30-round clips taped together in a fashion he had seen before in the “Call of Duty” video game he had played with his kids. The gun in the game is a Remington AR-15. To Koskoff, that was “bona fide evidence” that “the shooter was exposed to the marketing efforts of the defendant that were wrongful and that it influenced him.”
Fresh off his success in the Sandy Hook case, Koskoff and his firm are working on similar efforts: He represented Sandy Hook families in their nearly $1 billion October victory against Infowars prevaricator Alex Jones, for example. And he is working on suits aiming to hold gunmakers accountable after mass shootings in Buffalo, New York, and Uvalde, Texas. “The gun industry is making a concerted effort to court our children and teenagers and to sell them the U.S. military’s most infamous rifle,” he says. “No matter how parents feel about guns,” he says, “that’ll open their eyes.”
As a sought-after expert on constitutional law and specifically on reproductive rights, Professor of Law Renée Landers has been a frequent news commentator as the Supreme Court’s decision to overturn Roe v. Wade broke in slow motion over the late spring and early summer.
Landers, faculty director of the Health and Biomedical Law Concentration and the Master of Science in Law: Life Sciences programs, laid down a marker on the issue in January. She penned a Boston Globe op-ed targeting “specious analogies to instances in which the court has overturned precedents” that had been raised in oral arguments the previous month, specifically the landmark Brown v. Board of Education and Miranda v. Arizona opinions, which had both overturned earlier cases. “Neither analogy holds up under scrutiny,” she wrote. “If the Brown and Miranda cases stand for anything, it is the idea that the Constitution protects against unjust exercises of state power.”
She was in Washington, DC, in early May when the Court’s draft decision in Dobbs v. Jackson Women’s Health Organization leaked. “My phone blew up,” she says. Landers was suddenly juggling furiously, balancing a scheduled appearance on an unrelated panel with answering media requests and, not unimportantly, actually trying to read and understand the ruling.“
The media wants to cover these things as news, immediately, but you get an opinion from the court that’s 100 pages long … and it takes you some time to read and understand it,” says Landers, who was also until recently a board member with the Planned Parenthood League of Massachusetts. The age of the “hot take” leaves little time for understanding and nuance. But Landers sees engaging with the media as an important role for academic experts like her. “It helps inform the public about these major issues of our time,” she says.
In the ensuing weeks and months, she did just that, appearing on PBS’s The American Experience, several programs on WBUR public radio, and WGBH television’s Basic Black, among other shows. The WGBH show taped the morning that the Court officially released the final decision, setting off another hectic media scramble. The discussion on The American Experience, occurring weeks after the Dobbs decision was officially handed down, was more Landers’s speed: “Some time has passed, you’ve had a chance to read things carefully, and really think about them in the context of prior cases,” she says.
For Landers, the countless interviews have brought into sharp relief how the Dobbs decision has unsettled so many lives. While the media and health care providers are looking for clear answers on the abortion issue, she says, the constantly evolving situation means “certainty is not possible to provide.”
In the eye of the media’s abortion maelstrom
the supreme court of the united states