THE LAW takes the long view, and so do its chroniclers--none more so than Linda Greenhouse, New York Times reporter and unofficial doyenne of the Supreme Court press corps. But Greenhouse's recent essay on Chief Justice Roberts exemplifies the risks of racing to write the second draft of history before the first: By attempting to turn a single case into a moment of historic importance, Greenhouse misdescribes the record of one chief justice and severely insults another.
Greenhouse's essay was occasioned by the Court's April 2 ruling in Massachusetts v. EPA, a 5-4 decision instructing the Environmental Protection Agency to consider regulating greenhouse gas emissions. Before reaching the environmental-law issue, the Court had to decide whether Massachusetts had the right to bring the suit in the first place, under the doctrine of "standing."
A plaintiff has standing to seek judicial review of a government action only if he can show that he's suffered an actual, particularized injury, caused by the government action, that the court can remedy. This constitutional and pragmatic doctrine prevents political activists from challenging willy-nilly the laws that offend their political sensibilities but that don't actually injure them. Environmental laws are particularly susceptible to challenge by plaintiffs who lack standing.
In this recent case, Massachusetts was among the parties suing the EPA to consider regulating greenhouse gases. (The EPA argued that Congress gave it no such authority.) Justice Stevens, writing for the majority, held that Massachusetts does have standing to sue, because the State has "an independent interest . . . in all the earth and air within its domain," even if the State didn't show that state-owned land was directly affected by EPA inaction.
Chief Justice Roberts, writing for the dissenters, dispatched Stevens's reasoning on a number of points. (Justice Scalia, also writing for the dissenters, tackled the merits of the environmental-law issue.) Most importantly, Roberts showed that Stevens was playing rather fast-and-loose with the case law to show that Massachusetts's (in Stevens's words) "quasi-sovereign" interests merited "special solicitude" and sufficed to give Massachusetts standing.
TO GREENHOUSE, Roberts's dissent was not merely effective--it was "vehemen[t]." Not content to note it as an example of the former elite litigator's technical and intellectual rigor, she held it aloft as "a declaration of his deepest jurisprudential beliefs and highest priorities." To Greenhouse, Roberts's dissent proved the hierarchy of his priorities: "limiting standing was more important than deference to states."
Greenhouse's analysis would be startling if only for its evidencing her belief that Roberts would have turned a blind eye to Stevens's jurisprudential creativity if only the chief justice were a stronger believer in "deference to states." (Her effort to tie the analysis of a state's standing to the Rehnquist Court's assertive defense of state power under the Commerce Clause and sovereign immunity is an eyebrow-raiser, too.)
But, unsatisfied in limiting herself to merely insulting Roberts's integrity, she pressed further, insulting the late Chief Justice William Rehnquist:
In 1976, four years into the Rehnquist tenure, Professor David L. Shapiro of Harvard Law School wrote a famous article that boiled the justice's philosophy down to three premises: (1) in a case between the individual and the government, the government wins; (2) in a case between state and federal authority, the states win; and (3) when there is a question about whether a federal court has jurisdiction to decide a case (like whether the plaintiff had standing), the question should be resolved against jurisdiction (or against standing).
Those observations held up remarkably well during Justice Rehnquist's tenure. But last week's case placed the second and third propositions in irreconcilable conflict: the state could win only if it had standing.
Never having faced such a case, William Rehnquist did not have to choose between principles.
Greenhouse is suggesting that Rehnquist was lucky: Not confronted with tough choices, he was free to indulge his reflexes.
BUT THAT SIMPLY ISN'T TRUE. In his time on the Court, Rehnquist heard many cases involving both (1) a question of state and federal authority, and (2) a question about whether the court had jurisdiction. For example:
* In GMC v. Tracy (1997), Rehnquist agreed that the plaintiffs had standing and that Ohio's taxation of the natural gas industry did not exceed the State's constitutional power under the Commerce Clause.
* In Verizon v. PSC of Maryland (2002), Rehnquist agreed that the Court had jurisdiction over a challenge to Maryland's telecom regulations, under a narrow exception to constitutional sovereign immunity, thereby exposing the State to possible invalidation of its regulatory decisions under federal law.
* In Bacchus v. Dias (1984), Rehnquist joined a dissent from the Court's judgment holding that liquor wholesalers had standing to challenge Hawaii's liquor taxes and that the taxes were unconstitutional. The dissent wrote that the state tax fell within the State's power under the Twenty-First Amendment, and that the justices were "skeptical" that the plaintiffs had standing.
* In PG&E v. State Energy (1983), Rehnquist agreed that some challenges to California's nuclear-power regulations were "ripe" for adjudication, that others were unripe, and that California's regulations were not preempted by federal law.
Each of those cases involves both state power (Greenhouse's/Shapiro's second premise) and jurisdictional limits (their third premise). Rehnquist did not formulaically choose one priority over the other; rather, he narrowly parsed the issues and reached a principled result within the contours of the particular case--as Roberts did in Massachusetts.
IF GREENHOUSE wants a more complete picture of Roberts's intellectual rigor on the question of standing, then she should look no further than one of his first decisions following his appointment as chief justice. As it happens, the decision came not from the Supreme Court, but from the U.S. Court of Appeals for the D.C. Circuit, where he served prior to his elevation and over which he still serves as the Circuit Justice.
In Banner v. United States (Nov. 2005), the D.C. Circuit considered a challenge to Congress's ban on a D.C. metro area commuter tax, brought by District officials and residents. Virginia, a party supporting the tax ban, attempted to get the case thrown out of court for the plaintiffs' lack of standing. The court's unanimous opinion dispatched Virginia's argument in a mere footnote; Roberts had no trouble opening the courthouse doors to a party where jurisdiction did not require otherwise.
Chief Justice Roberts will hopefully preside over the Supreme Court for many, many years. In that time, he will leave his mark on the Court, as did his predecessor, mentor, and former boss, Chief Justice Rehnquist. But to pretend that one case gives such insight into his "deepest jurisprudential beliefs an highest priorities" is unrealistic: Cases turn first and foremost on peculiar facts and important distinctions. Greenhouse's reading of the past is hasty; her reading of the future, no less so.
Adam J. White is an attorney in Washington D.C. and a former clerk at the U.S. Court of Appeals for the D.C. Circuit. The opinions expressed here are his own; he does not speak on behalf of his employer.