Ketanji Brown Jackson Wants to Save the Supreme Court From Itself

“As previously explained, EPA is undertaking its own review of the 2022 reinstatement, and the agency may ultimately conclude in that process that California’s emissions standards have had a deleterious impact on American consumers and liquid fuel producers,” they told the justices in their brief. “But parties seeking to invoke the jurisdiction of the federal courts cannot rely on later administrative developments to establish that they satisfied Article III standing requirements at the time of suit.”

Kavanaugh, writing for the court, found those arguments unpersuasive. He concluded that the fuel industry need not prove that ruling against the waiver would fix all of its claimed injuries, but that it would likely help with at least some of them. “In short, the commonsense economic inferences about the operation of the automobile market—combined with the statements of the fuel producers, California, EPA, and the vehicle manufacturers—make it sufficiently ‘predictable’ that invalidating California’s regulations would likely redress the fuel producers’ injury,” he wrote.

Jackson, in dissent, saw no reason for the court to take up the case in the first place. “EPA is presently reviewing California’s pre-emption waiver, and as counsel told us at oral argument, the agency is likely to withdraw that waiver imminently, which will put an end to California’s emissions program for good,” she wrote. “In fact, counsel was so confident of that outcome that he told us he would bet his ‘bottom dollar’ on it. His confidence is not overstated.”

As a result, she noted, the court effectively went out of its way to unnecessarily decide something in the industry’s favor.“It may be difficult for the public to know exactly what to make of the Court’s decision to address the fleeting legal issue presented here,” she wrote. “For its part, the Court does not explain why it is so eager to resolve this highly fact-bound, soon-to-be-moot dispute.”