In a week that’s been chock full of good news for liberal Supreme Court watchers, the justices also offered a ray of hope to environmentalists who were bracing for a loss before the justices leave town.
Utility Air Regulatory Group v. Environmental Protection Agency asks the Court to invalidate EPA regulations targeting mercury emissions. Before Friday, it appeared likely that Justice Antonin Scalia, a staunch conservative who asked skeptical questions of the government at oral arguments, would write the opinion in this case.
That’s because the Supreme Court typically tries to distribute work equitably among the nine justices. As a general rule, the Court normally distributes majority opinions among the justices so that each justice writes approximately the same number of opinions for the Court in a given term. It also frequently distributes work equitably by month. So, for example, in a sitting month where the Court hears nine cases, each of the nine justices will write one majority opinion.
Utility Air was argued in March, along with eight other cases. Only one justice, Justice Scalia, has not written a case from the March sitting. That seemed to suggest that Scalia would write Utility Air.
On Friday, however, Scalia handed down the Court’s opinion in Johnson v. United States, a case from the Court’s April sitting. Though Scalia is still the only justice who hasn’t handed down an opinion in the Court’s March sitting, he is now one of only two justices (the other is Justice Stephen Breyer) who has written a total of eight majority opinions this term. All of the other justices have written only six or seven majority opinions.
It is unlikely that Scalia will write a ninth opinion when many justices haven’t even written an eighth opinion.
As of Friday, only two justices, Justices Anthony Kennedy and Ruth Bader Ginsburg, have only written six majority opinions. Kennedy and Ginsburg, moreover, are the only two justices who have not written a majority opinion from the Court’s February sitting (although one case still remains in that sitting). Therefore, while it once appeared likely that the very conservative Scalia would write Utility Air, it now appears much more likely that the somewhat less conservative Kennedy, or even the liberal Ginsburg, will write this opinion.
That does not mean that the EPA will necessarily win this case. But it’s still good news for the Earth.