SEE YOU IN COURT. That’s, of course, what Donald Trump tweeted (caps included) last Thursday after a federal appeals court refused to reinstate his controversial “travel ban” on refugees and all travelers to the U.S. from seven predominantly Muslim countries. Whether that case makes it all the way to the Supreme Court remains to be seen. But it’s not going out on much of a limb to say that the U.S. court system will be busy in the Trump era. And that may mean that Trump’s pick for Supreme Court could be key in deciding the fate of major shifts in policy — including on the environment.
Want to hear more? You can listen to our whole conversation with Slate’s Dahlia Lithwick and Grant MacIntyre — director of the University of Pittsburgh’s Environmental Law Clinic — in this week’s episode of our new podcast, Trump on Earth.
In that arena, there are plenty of personal details that make Neil Gorsuch a fascinating nominee. His mother served as chief of the Environmental Protection Agency during the Reagan administration; and the Coloradan is reportedly a big outdoorsman and loves to ski.
But Dahlia Lithwick, who covers the Supreme Court for Slate, told us that while it’s fun to speculate on how those things might shape Gorsuch’s leanings on environmental issues, we’ll find plenty of more relevant details in his actual history on the bench.
“I think one of the really fascinating ways in which Neil Gorsuch is a very different kind of thinker is that he has absolutely taken a pickaxe to the notion of what’s called ‘Chevron deference.’ In a very fundamental way, the courts have generally deferred to agencies and to the fact-finding that agencies make when they create regulations.
And one of the real hallmarks of [Gorsuch’s] jurisprudence has been that he has no patience for the Chevron deference doctrine; he thinks it’s a profound abdication of the judicial role for judges to simply say that ‘if the EPA finds this, then we stand back and assume those are the facts.’
So where Gorsuch may be really different is the idea that judges get to insert themselves in a deep way into the conversation about how agencies make their determinations.”
On the surface, that might sound like cause for concern for environmentalists. But given the Trump administration’s history of dismissing facts — including on climate science — Lithwick says some environmentalists may see Gorsuch’s desire to wade into the weeds as a possible “silver lining.”