First Monday
The Supreme Court opened a new term on Monday, and the Wall Street Journal's preview puts it pretty bluntly: nine justices, a range of tough cases, and very few friends. The President is attacking their integrity again, leading Democrats are floating plans to add seats, the approval rating is underwater, and the lower courts are grumbling (loudly). Into that mood walk the justices with a docket that looks purposefully designed for the after dinner news circuit: AR-15s, religious preschools, transgender minors, and two tests of the deportation agenda.
Opening day was the climate case, and it’s the one I care about most, because underneath the politics it’s just a tort case and I also really like spending time in Colorado. In Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County, Boulder sued Suncor and Exxon in state court in 2018 for nuisance, trespass, unjust enrichment, and deceptive trade practices. The theory is the companies knew what their product did, sold it anyway, and left local governments holding the bill for wildfires and floods. The Colorado Supreme Court let the case go forward. The companies, with the Solicitor General's office arguing beside them, say federal law preempts all of it: interstate emissions are a federal problem, the Clean Air Act occupies the field, and one state's jury can’t set energy policy for the other forty-nine.
Only eight justices heard it. Justice Alito recused himself because he owns oil and gas stock, so 4-4 split leaves the Colorado ruling standing and Boulder's case alive. Monday didn’t sound like a Court with a clean majority. Justice Kavanaugh called Boulder's reading of the Clean Air Act an "all-time elephant in a mousehole." The Chief Justice warned that if Boulder wins, "the next day, a municipality in every single state will file a lawsuit." But Justice Gorsuch pushed back on the government's position, which he said would mean that after the Clean Air Act "nobody can sue at all," even for harms the EPA has no power to touch. And the three liberal justices spent much of the hour asking whether the Court should be hearing an interlocutory appeal from a state court in the first place. Frankly, a valid point.
Every plaintiff's lawyer in the country recognized the floodgates argument. Think asbestos, tobacco, and opioids. The Chief Justice himself brushed off the asbestos comparison, noting that greenhouse gases touch every state, which cuts both ways: it’s either why the courthouse door should be closed, or why litigation is the only remedy anyone has. Watch Barrett and Gorsuch. A decision is expected early next year, and the smart money says a fractured one.
The rest of the fall and early winter is just as loud. November 3 is St. Mary Catholic Parish v. Roy, on whether Colorado can keep a Catholic preschool out of its universal pre-K program. December 2 is Viramontes v. Cook County and Grant v. Higgins, on whether a state can ban AR-15s under the Second Amendment's history-and-tradition test. December 9 is Department of Homeland Security v. D.V.D., on deporting people to countries they’ve never set foot in, with the mass detention case to follow early next year. November 3 is also Election Day, and a contested Senate or House race could land on this docket too. Add the annual retirement watch, with Justice Thomas at 78 and Justice Alito at 76, and this term will not be quiet.
Closer to Home: South Carolina already ran this experiment. Charleston filed its own climate suit in 2020 against more than twenty oil companies, pipelines, and retailers. Last August, Judge Roger Young dismissed it: preempted by the Constitution and the Clean Air Act, a political question a court can’t answer, barred by the three-year statute of limitations, and outside South Carolina nuisance law, which only reaches the use of land. The city let its appeal deadline pass. So whatever the Court does with Boulder, Charleston's case is already gone. If Boulder wins, though, do not be surprised if the next coastal city reads the opinion and tries again.
The Court has decided plenty of cases about whether a particular plaintiff can sue. This one is about whether anyone can.
💡 Sidebar
Lawyer Trick No. 72: Eat to the Bones
I love hot wings. But, hand up, I'm the guy who leaves meat on the bone. Once the sauce is gone, I tend to lose interest. It's bad enough that a dear friend of mine used to finish them to save me from the embarrassment of being that guy.
That’s not how it goes with my cases. We have a handful of cases right now where the most culpable parties have settled to the tune of seven figures. But we're still going, because there are other people liable and we don't quit. It's easy to take the payday and close the file, and I used to work for folks who did that. We don't. Why? Because the job isn't over. We’ve selectively chosen the hard path, and we don't fold the tents when the first checks come in. “We choose to go to the Moon in this decade and do the other things, not because they are easy, but because they are hard.” Sometimes the Moon is the courthouse and, brother, I will be your lunar lander.
We do that for a reason: a full measure of justice requires completeness, and completeness demands a thorough reckoning of the chessboard, no matter the cost and effort. It’s also for selfish reasons. My colleagues across the aisle know that’s how I practice. So when some dingus adjuster says “he won’t do that for this” they unequivocally tell them I will, and I will enjoy it.
Once you're in our swimming pool, "now yous can't leave." We eat to the bones.
⚖️ Closing Arguments
A Watch, a Business Card, and the Lost Art
I needed to get a watch resized, so the other day I took it to Hale's Jewelers, which has been in Greenville since 1856 and is marking 170 years this fall. All I needed was someone to take a few links out, but I wanted it done right.
The woman who helped me did that in a few minutes. Then she kept going. She put it on my wrist, looked at it, took it off, and adjusted it again, because the first fit was "fine" and she didn’t want fine. I guess completeness and thoroughness is this week’s theme. Then she took it upstairs and ran it on a timing machine to make sure it was keeping accurate time, and sent me on my way. The charge for all of this was nothing, even though she didn’t know me from Adam.
I’ve thought about that visit a lot while drafting this week’s edition, because I work in an industry where responsiveness and completeness are the whole product. Clients hire the person who answers the phone, explains the thing without making them feel small, and takes the extra step without being asked. Basically the stuff my friend, Peter Scovill, has turned into an art form (more on that in another edition). Clients forget most of what we do. They never forget whether we called back.
So this one is a thank you. She was responsive, she was courteous, and she went past what the job required because she clearly took pride in getting it right. I asked for her card, which is now sitting in my desk drawer. Christmas is right around the corner, and my wife will benefit from a jeweler who time tested a watch she didn’t even sell. That isn’t an ad, it’s just what happens when someone does their job right. You remember, and you come back.
Court is in recess- see you next Friday.
