How To Think Like A Liberal Supreme Court Justice

July 05, 2022 Francis Menton @ Manhattan Contrarian

Probably you think that the justices sitting on the U.S. Supreme Court must be among the most intelligent people in the country. Granted, the mainstream press spends a lot of time denigrating the intelligence of the conservative justices. But surely then, the liberal justices must be really, really smart.

Consider Justice Elena Kagan. She was the Dean of the Harvard Law School. Then she became the Solicitor General of the United States. That’s the person in charge of arguing the government’s positions in the Supreme Court. You need to be really smart to do that job. So if you’re looking for someone who can teach you the thinking processes of the very smartest of the smart, there is no one better to look to than Elena Kagan.

With that in mind, let’s take a closer look at Justice Kagan’s dissent on behalf of the three liberal justices in the case of West Virginia v. EPA that came out just last week. That’s the case where the six conservative justices held that EPA lacked the authority under existing statutes to transform the electricity-generation sector of the economy. In my last post, I already quoted in full the second paragraph of Justice Kagan’s dissent. The first couple of paragraphs of an opinions are where a judge normally tries to encapsulate the essential gist of the argument, the reasoning that will capture the reader’s attention and immediately convince him of the rightness of the judge’s thinking. So let’s look at that paragraph again:

Climate change’s causes and dangers are no longer subject to serious doubt. Modern science is “unequivocal that human influence”—in particular, the emission of greenhouse gases like carbon dioxide — “has warmed the atmosphere, ocean and land.” Intergovernmental Panel on Climate Change, Sixth Assessment Report, The Physical Science Basis: Headline Statements 1 (2021). The Earth is now warmer than at any time “in the history of modern civilization,” with the six warmest years on record all occurring in the last decade. 

U. S. Global Change Research Program, Fourth National Climate Assessment, Vol. I, p. 10 (2017); Brief for Climate Scientists as Amici Curiae 8. The rise in temperatures brings with it “increases in heat- related deaths,” “coastal inundation and erosion,” “more frequent and intense hurricanes, floods, and other extreme weather events,” “drought,” “destruction of ecosystems,” and “potentially significant disruptions of food production.” 

American Elec. Power Co. v. Connecticut, 564 U. S. 410, 417 (2011) (internal quotation marks omitted). If the current rate of emissions continues, children born this year could live to see parts of the Eastern seaboard swallowed by the ocean. See Brief for Climate Scientists as Amici Curiae 6. Rising waters, scorching heat, and other severe weather conditions could force “mass migration events[,] political crises, civil unrest,” and “even state failure.” 

Dept. of Defense, Climate Risk Analysis 8 (2021). And by the end of this century, climate change could be the cause of “4.6 million excess yearly deaths.” See R. Bressler, The Mortality Cost of Carbon, 12 Nature Communications 4467, p. 5 (2021).

In other words, Justice Kagan has fallen hook, line and sinker for a preposterous end-of-days story of climate doom. She has totally failed to distinguish a kernel of bona fide scientific learning from ridiculous scare stories peddled by charlatans.

She starts off with a citation to the Intergovernmental Panel on Climate Change, which contends that human emission of greenhouse gases like carbon dioxide “has warmed the atmosphere, ocean and land.” I would call that proposition highly debatable, but assume it is true. Nothing about that statement quantifies the warming that has occurred as a result of human activities, or establishes that it is a problem, let alone a crisis.

And then it’s on to the apocalypse. 

“If the current rate of emissions continues, children born this year could live to see parts of the Eastern seaboard swallowed by the ocean.”  

Huh? Where does that come from? It’s from an amicus brief submitted by all of six people calling themselves “climate scientists.” The leader is one Michael Oppenheimer of Princeton — a charlatan if ever there was one.

This is no more than a wild and unsupported scary prediction designed to frighten the unsophisticated. Oppenheimer has been peddling these things for decades. Oppenheimer first became famous for his apocalyptic sea level rise predictions way back in 1988, when he and fellow alarmist James Hansen appeared at a June 23 hearing of the Senate Committee on Energy and Natural Resources that many credit for getting the climate scare ball rolling. At that hearing Oppenheimer was relatively modest with his predictions of doom:

This increase in global temperature causes a concomitant rise in global sea level as ocean water expands and land ice melts. Global mean temperature will likely rise at about 0.6 degrees Fahrenheit per decade and sea level at about 2.5 inches per decade over the next century. These rates are 3 to 6 times recent historical rates.

Oppenheimer’s prediction of accelerating sea level rise has proved completely wrong over the intervening 34 years. The observed rate in areas without rising or subsiding land is approximately 4 inches per century, about 15% of what Oppenheimer predicted.

Shortly after the 1988 hearing, Hansen gave an interview to journalist Bob Reiss, where Reiss quoted him making the following prediction for 20 years out, that is, 2008:

"The West Side Highway [which runs along the Hudson River] will be under water," Hansen said. "And there will be tape across the windows across the street because of high winds. And the same birds won't be there. The trees in the median strip will change."

Obviously, that one did not age well.

Here is another Oppenheimer prediction of environmental apocalypse, this one from 1990:

[By] 1995, the greenhouse effect would be desolating the heartlands of North America and Eurasia with horrific drought, causing crop failures and food riots. … [By 1996] the Platte River of Nebraska would be dry, while a continent-wide black blizzard of prairie topsoil will stop traffic on interstates, strip paint from houses and shut down computers. … The Mexican police will round up illegal American migrants surging into Mexico seeking work as field hands.

With this kind of past success, it’s hard to believe that Oppenheimer would still venture to try to make any predictions at all. And note that Oppenheimer’s prediction of parts of the East Coast getting “swallowed” is not a fact that somehow was proved in a lower court, or that is any part of what is called the “record” of the case that is before the Supreme Court. It is just a wild and unsupported assertion in an amicus brief from a guy with a history of wild and unsupported alarmist climate predictions that have proved completely false.

But Justice Kagan asserts this as a key part of her main argument as to why EPA must be given the latitude to close all coal and natural gas power plants.

The basic thought process is, start with a kernel of reality that may be somewhat concerning, and allow yourself to get scared into suspending all critical thinking and responding with crazed over-reaction. You may have noticed the same kind of thought process informing the work of our health authorities during the Covid epidemic. Those people weren’t Supreme Court justices, but they were also mostly people of seemingly high intelligence and with fancy academic pedigrees. It seems that the “smarter” a person is — at least as measured by our conventional criteria — the more likely that person is subject to this approach to problems.