When the Supreme Court’s Ohio v. EPA decision blocked Environmental Protection Agency limits on Midwestern states polluting their downwind neighbors, a sad but telling coda came in Justice Neil Gorsuch’s opinion. In five instances, it confused nitrogen oxide, a pollutant that contributes to ozone formation, with nitrous oxide, better known as laughing gas.
You can’t make this stuff up. This repeated mistake in the 5-4 decision exemplifies a high court not just indifferent to facts but contemptuous of them.
Public trust in the Supreme Court, already at a historic low, is now understandably plunging. In the last four years, a reliably Republican majority on the high court, led by Chief Justice John Roberts, has embarked on a remarkable spree against history and reality itself, ignoring or eliding facts in decisions involving school prayer, public health, homophobia, race, climate change, abortion and clean water, not to mention the laughing gas case.
The crescendo to this assault on expertise landed in June, when the majority’s Chevron decision arrogated to the courts regulatory calls that have been made by civil servant scientists, physicians and lawyers for the last 40 years. (With stunning understatement, the Associated Press called it “a far-reaching and potentially lucrative victory to business interests.” No kidding.) The decision enthrones the high court—an unelected majority—as a group of technically incompetent, in some cases corrupt, politicos in robes with power over matters that hinge on vital facts about pollution, medicine, employment and much else. These matters govern our lives.
The 2022 Kennedy v. Bremerton School District school prayer decision hinged on a fable of a football coach offering “a quiet personal prayer,” in the words of the opinion. In reality, this coach was holding overt post-game prayer meetings on the 50-yard line, ones that an atheist player felt compelled to attend to keep off the bench. Last year’s 303 Creative v. Elenis decision, allowing a Web designer to discriminate against gay people, revolved entirely on a supposed request for a gay wedding website that never existed that (supposedly) came from a straight man who never made the request. Again, you can’t make this stuff up. Unless you are on the Supreme Court. Then it becomes law.
Summing up the Court’s term on July 1, the legal writer Chris Geidner called attention to a more profound “important and disturbing reality” of the current majority’s relationship to facts. “When it needs to decide a matter for the right, it can and does accept questionable, if not false, claims as facts. If the result would benefit the left, however, there are virtually never enough facts to reach a decision.”
The “laughing gas” decision illustrates this nicely: EPA had asked 23 states to submit a state-based plan to reduce their downwind pollution. Of those, 21 proposed to do nothing to limit their nitrogen (not nitrous) oxide emissions. Two others didn’t even respond to that extent. Instead of telling the states to cut their pollution as required by law, the Court’s majority invented a new theoretical responsibility for EPA—to account for future court cases keeping a state out of its Clean Air Act purview—and sent the case back to an appeals court.
That means that pollution that will cause an estimated 1,300 premature deaths in 2026 keeps on coming. Where fantasy prayers and fake cakes tip the scales of justice on one side, “an underdeveloped theory that is unlikely to succeed on the merits,” as described in a rare dissent from (Republican) Justice Amy Coney Barrett, swung things the other way for polluters. The decision seems aimed at hobbling the EPA by demanding it thoroughly respond to every inane public comment submitted by polluters in perpetuity before issuing a regulation, warns climate writer Robinson Meyer of HeatMap.
Climate change, in particular, seems to draw out the Court’s taste for fiction. The 2022 West Virginia v. EPA decision that halted efforts to limit greenhouse gas emissions from coal power plants, another 6-3 opinion, saw the majority enshrine a “major questions” doctrine. This legal theology, conjured from the penumbras and emanations of past antiregulatory decisions, insists that sizable regulations require patently-impossible-to-acquire congressional authorization. This is a “power grab” by the Court, anointing itself the economy’s czar.
Science is dismissed and disdained in this war on reality. For example, a late June decision upholding bans on homeless people sleeping in public places criminalizes human biology, as the dissent noted. A frankly despicable decision this year to legalize bump stocks turned on gun fetishists’ scholastic argument that holding your finger taut while a rifle bucks around it—pumping bullets into men, women and children, with more than 400 (400!) people shot and 60 killed this way in Las Vegas in 2017—is not truly automatic weaponry. That’s despite research showing a growing trend of greater fatalities in mass shootings, enabled by just such technology. The 2022 vaccine mandate decision, another 6-3 masterpiece, turned on sophistry that workplace rules only covered hazards found solely in the workplace (but somehow excluding, say, forced air-breathing with infected employees), and ignored the deeper reality that vaccines save lives. The majority justices doubtless contributed to the hundreds of thousands of deaths of unvaccinated people in the U.S. from COVID with their decision.
A Clean Waters Act case last year decreed wetlands only environmentally protected if their waters possessed a “continuous surface connection” with a larger body of water. This invented requirement is wholly at odds with how water and wetlands actually work, leaving up to half of the country’s protected wetlands now available for dredging.
The 2022 Dobbs case ended the right to abortion, a basic medical procedure that helps people manage their own health and bodies and has saved countless lives. The only arguments against abortion are not scientific but theological. The Court waved away concerns about the very predictable health impacts of Dobbs. Two years later, news reports abound of women facing dangerous pregnancies and people in states with stringent abortion restrictions reporting worse mental health. Infant mortality is up almost 13 percent in Texas.
The court’s July 1 decision to immunize Donald Trump from prosecution for “official acts” undertaken in office as president means, “It can never again be said that in America ‘no man is above the law,’” retired federal judge J. Michael Luttig noted in response to the decision. No evidence of an official act undertaken as part of a criminal unofficial one is permitted, the Court added, as well as no inquiry into the chief executive’s motives, both curious exclusions from criminal investigations that should rest on facts.
“Facts are stubborn things,” observed John Adams in 1770, speaking at a murder trial of Redcoats who fired into a crowd at the Boston Tea Party, before a judge sworn to serve a king. “Whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence: nor is the law less stable than the fact,” added Adams.
Not so for our Supreme Court majority. Before taking office, justices must take an oath to “administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties.” In rejecting facts to please their political party—and their patrons—the justices of the Court’s majority have broken their oath, made to both the Constitution and the American people.
