Tuesday, January 29, 2013
Boy, Do I Love it When I Agree With the Other Guys
I presume that most people in the legal academy, like me, have strong political views, and that their judicial views tend to align quite closely to those political views. Shocking, yes. But if you're like me, and you're a political liberal, and you find yourself agreeing time and time again with the liberal wing of the Court and think Justice Ginsburg is always right and that Justice Scalia is always wrong, and if you have any amount of self-awareness at all, however small, then from time to time you're going to inevitably ask yourself something like: Oh my god, am I just a total hack?
That's why I love this case I taught yesterday in Environmental Law called Alaska Department of Environmental Conservation v. EPA. The case involves the interpretation of the Clean Air Act's requirement that new and modified sources of air pollution in non-attainment areas get a permit that includes a Best Available Control Technology (BACT) provision. The statute gives the state permitting agency the authority to choose the specific BACT, but the question in the case was whether EPA, if it thinks the state's BACT choice is unreasonable, can issue a stop order against the new or modified source, or whether instead it has to go to state (probably) court and challenge the state's BACT determination as unreasonable. Justice Ginsburg, writing for 5 justices (Breyer, Souter, Stevens, and O'Connor) held for EPA. Justice Kennedy, joined by Justices Scalia, Thomas, and Rehnquist, dissented. Now, I love the feds and the environment as much as any card-carrying liberal, but in this case I just happen to think the conservatives were right and that the CAA gives the states the right to insist on their BACT determinations unless those determinations are unreasonable under state law. Whenever I teach the case, I always feel good about myself, and toast myself with Champagne, and give myself a big hug, and sleep the safe luxurious sleep of a small child cuddling his favorite stuffed penguin. Are there cases that make you do this (you know, roughly speaking)?
Now as I was thinking about writing this post, I realized that for me this issue runs a little deeper and affects my scholarship. When I write law review articles (which, let's be honest, I do at a less than Sunstein-ian pace) I'm often attracted to topics that people looking at me from the outside in a not very sophisticated manner would think are counter-intuitive, given my general political and legal views. To be sure, I have written articles in the mode of "this is my real, most important commitment, and here's how the legal system should recognize that commitment, and here's why," and those pieces have tended to be among the more well-received of my articles (again, not talking Nomos and Narrative here). But the pieces I enjoy writing more are those where I take a position that's incidental (orthoganal? what the hell does that even mean?) to my main beliefs and that may seem surprising to people who know me. I'm thinking here of my articles about why we should teach about religion in public schools or why Kitzmiller was wrong to say that intelligent design isn't science or my forthcoming BYU piece on when and why the government shouldn't "disapprove" of religion. I believe all these things (they're not, in other words, simply art projects, although I still wonder about whether it would be ethically wrong to write two articles about the same issue, each one coming down on the exact opposite side and disagreeing with each other on every point), but they're not the things that I care most about (which would be, for example, that public schools shouldn't promote religious truth, that public schools should not and cannot usually teach intelligent design, and that the government should not endorse religion). Of course, writing about these things results in occasionally finding myself in a weird position, like when I was at a Liberty University Intelligent Design Symposium and Michael Behe put a picture of me up on a gigantic powerpoint presentation he was giving to a packed crowd and lauded me as a critic of Kitzmiller (that was weird). Okay, I'm done sharing now, thanks.
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