The 2015 term of the U.S. Supreme Court delivered landmark decisions that will surely mark turning points in the country’s history. By legalizing same-sex marriage throughout the 50 states – and, more specifically, forbidding states from prohibiting the practice – as well as upholding the federal subsidies established by the Affordable Care Act to help low-income Americans pay for health care, this year’s crop of rulings has positioned the court as the most liberal since the Warren Court of the 1960s. But that label does not mean that the Supreme Court’s decisions fell universally left of center in the session that ended this week. Several key exceptions deserve mention.
First is the court’s finding that the Environmental Protection Agency failed to properly account for cost when issuing its rules regulating power plant emissions, including mercury. Inasmuch as the agency’s rule-making authority derived from the Clean Air Act, the court found in a 5-4 split – with Justice Anthony Kennedy joining conservatives Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts – that the EPA ran afoul of the rule in not conducting a cost-benefit analysis at the time of the rule-making, though it did so later in the regulatory process when it set the emissions standards themselves. Those in the coal-fired power plant business took issue with the rule because of this omission, claiming the costs of reducing mercury and other toxic emissions will far outweigh the benefits. That question, though, was not at the core of the court’s decision despite Scalia’s dismissive statements otherwise: “It is not rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits. Statutory context supports this reading,” Scalia wrote in the majority opinion.
What the decision amounts to – aside from what appears to be an ideological opposition to the EPA’s imposition of rules governing power plant emissions – is an administrative correction. Because the EPA did not conduct its cost-benefit analysis at the proper time, it must now rewrite the rule to include that analysis. The ruling ensures that the regulatory process is followed but does not undermine either intent or progress thus far gained by the power plant emissions rule.
In another limited but pivotal decision that departs from the court’s liberal tenor this term, the justices found that lethal injections involving midazolam, a controversial drug that has led to botched executions, does not run afoul of the Constitution’s prohibition on cruel and unusual punishment. The case was brought by a group of Oklahoma death row inmates concerned about the pain and suffering the sedative has caused past inmates. The court’s majority – again, with Kennedy joining the four conservative justices for a split decision – found that inmates failed to provide a less-painful alternative, and that they failed to prove that midazolam caused undue pain and suffering. By focusing on such a narrow slice of the argument, the court’s majority side-stepped the larger issue of whether the death penalty is conscionable in any circumstance – a question that Justice Stephen G. Breyer raised in his dissent. “I believe it highly likely that the death penalty violates the Eighth Amendment,” Breyer wrote “At the very least, the court should call for full briefing on the basic question.”
Breyer is correct, and the growing number of states that ban the practice – there are 19 – suggests that the conversation is ripe. For now, though, states that use a problematic sedative to aid in executing their death row inmates may continue. That is hardly a landmark liberal decision indicative of a sea change in the court’s direction.