Climate Policies: Standing in the Shadows of a 6 to 3 Supreme Court

Joel B. Stronberg
9 min readSep 29, 2020

Long after Trump is a footnote in history, his impact on the environment will still be felt. For progressives and moderates alike, the horrors of a Trump presidency are cloaked in judicial robes.

Trump, in consort with the Senate Republicans, will have appointed nearly one in four federal judges and most probably three of nine justices on the US Supreme Court by the end of his first term.

Should Amy Coney Barrett be confirmed to fill the seat left vacant by the passing of Justice Ruth Bader Ginsburg, the US Supreme Court will take on a decidedly conservative bent. With her confirmation, federal courts will be-come a vastly different venue in which to debate environmental regulation.

Unlike Justice Kavanaugh, Coney Barrett appears never to have decided nor written about any environmental law cases. Therefore, how she would rule on climate-related matters as a Supreme Court justice must be inferred from her various legal writings and lectures.

Coney Barret, like Justices Gorsuch and Kavanaugh, is an originalist and textualist in the mold of Justice Antonin Scalia — for whom she clerked. As a textualist, she will rely almost exclusively on the literal or plain meaning of words. Textualists choose not to read into laws things that are not there and do not consider supporting or supplementary sources, such as modern social policy or legislative history, when interpreting a statute.

It may help to think of the difference between a textualist and their less literal counterparts on the bench in this way. If something walks like a duck and talks like a duck, a textualist will not jump to the conclusion it is a duck. Whereas more liberal jurists will take its “duckness” into consideration when making a decision.

As to how an originalist approaches a case, I’ll let Justice Scalia speak for himself:

The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted. (emphasis added)

The remaking of the high court into a more conservative deliberative body raises critical questions for…

Joel B. Stronberg

Stronberg is a thought leader in the climate community with over 40 years of experience covering environmental and sustainability issues as a freelancer.