God, guns, and climate change

The court has remarkable freedom to select the cases it wants to hear each term. It receives some 8,000 petitions every year. It usually selects between 60 and 70 cases for oral argument through something known as the “rule of four,” a longstanding custom that requires four justices to bring a case forward. Which is to say: The justices handpicked these high-profile cases because this was the moment they wanted to weigh in on them — and take the vote.

All of the cases the court will take up this term sit squarely within the supermajority’s longstanding interests. That includes the case that will kick off the term Monday: Suncor Energy vs. County Commissioners of Boulder County. This quiet yet important case could determine whether Big Oil can escape damages in state court, a top priority for energy companies that have already wriggled free from much federal regulation.

As the current administration claims climate science is a hoax — and the Supreme Court led by John Roberts has weakened the Environmental Protection Agency and other federal agencies — several blue states and cities, such as Colorado’s Boulder County, have tried to take action. It’s a clever work-around — if the Supreme Court allows it to stand. They have not looked to regulate energy companies, but to use state and local laws to hold the companies responsible for the spiraling costs of climate change and natural disasters. Suncor wants to use preemption to stop those efforts cold: The company asserts that federal law implicitly blocks states and counties from such litigation.

The key word there is implicit. No federal statutes allow for federal preemption of state law in this way. The question is whether the Roberts Court will find that sort of authority in federal statute anyway. Boulder County will argue that it is not seeking regulation itself, but damages for the devastating fires and droughts the industry has helped cause. It will also suggest that evidence shows companies such as ExxonMobil knew long ago that burning fossil fuels altered the climate.

Suncor and the oil industry, meanwhile, want to force the case filed in Boulder away from more liberal judges in Colorado and into federal court. They think they have a better chance of prevailing before a business-friendly Supreme Court with six justices appointed by GOP presidents, half of them named by Trump.

It’s hard to blame them for thinking this. Perhaps no group has a better record before the Roberts Court than big business. Whereas under previous courts, the Chamber of Commerce’s opinion prevailed only about half the time, under Roberts that number is closer to 70 percent — and studies show that in some terms, it has even reached 100 percent. These decisions have often dynamited precedent, as the court knocks regulations aside, hems in federal agencies, and makes it harder to enforce existing labor and environmental laws.

Later this term, the court will combine two cases that involve challenges to laws in Connecticut and Cook County, Ill., that restrict assault weapons. The guns in question have a design that makes it easy to start a deadly shooting spree, just shy of being a fully automated or continuously firing weapon.

Cook County and other jurisdictions have adopted laws barring or restricting them. Four different federal circuit courts have upheld the rights of states and localities to regulate these guns, even since the expansive Second Amendment readings handed down by the court in District of Columbia vs. Heller and New York State Pistol Association vs. Bruen. But now the Roberts Court may use this case to further advance its pro-Second Amendment agenda.

The final potential blockbuster, so far, is St. Mary Catholic Parish v. Roy, another case from Colorado, this one centered around the tension between religious liberty and the separation of church and state. The Roberts Court has issued a series of rulings since 2017 that erode that wall. For instance, it has ordered local governments to treat religious schools as equal to public schools, essentially moving the law toward the proposition that any aid the government provides to secular schools must also go toward religious ones.

This case would go a step further still. Colorado state law says that preschool funding can go to any public, private, or religious school so long as it does not discriminate against the students or families based on “race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level or disability.” The Catholic school asserts that this stricture is discriminatory, arguing that it should have a free hand on matters of sexual orientation and gender identity.

The claim in this case is that the state is violating the school’s religious freedom by barring discrimination. This would turn the Constitution’s freedom to worship from a shield into a sword. The state’s reply is that it is not discriminating against religious schools and is actually funding them, something the Roberts Court, over the last decade, has reworked the law to allow.

There’s yet another twist. The law firm behind this case, Becket, claims an “unparalleled, undefeated” record at the Supreme Court, including 13 victories on religious liberty cases over the last 15 years. It has deep ties to Leonard Leo, the longtime court whisperer and executive with the Federalist Society, which was launched in 1982 in part to create a pipeline to powerful positions for “libertarian and conservative” lawyers and judges. He is one of the key operatives who helped vet a list of trustworthy Supreme Court justices for Donald Trump in 2016 when the presumptive GOP nominee needed to build trust with religious conservatives. Leo then deployed millions of dollars to get his picks — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — confirmed.

In 2020, as he secured a 6-3 Republican-appointed majority on the Supreme Court, Leo was rewarded by electrical products mogul Barre Seid with control of a $1.6 billion trust fund to continue remaking America’s laws through the courts and culture. Much of that money has gone to fueling right-leaning special-interest groups and litigation nonprofits, like Becket.

Roberts’s push for religious liberty, like his long-term play to undermine the Voting Rights Act, dates back to the chief justice’s days as a young aide in Ronald Reagan’s administration.

One of the major cases at issue when Roberts worked in Reagan’s counsel office was Bob Jones University vs. U.S. In 1983, the Supreme Court had a majority of justices appointed by Republican presidents, but they had not been screened by leaders of the then-nascent Federalist Society. That year, the court issued an 8-1 ruling that the IRS had the power to deny nonprofit status to Bob Jones University, which had engaged in racial discrimination by barring interracial dating.

Reagan had sought to exempt Bob Jones from any new law barring tax breaks for schools that discriminate. The court resoundingly rejected such an exemption, but now Roberts is poised to use judicial power to help this agenda prevail, four decades later.

After all, the court’s “rule of four” that it uses to decide which cases it will hear obscures something else. The justices know that it takes four votes to hear a case, but five to win it. And as the late Justice Antonin Scalia once said, “If I don’t think we have the five to win it, there won’t be four to hear it.”

Roberts must believe the votes are there. This court has already had its way on voting rights, affirmative action, executive power, the power of federal agencies, and abortion. On guns, religion, and big business, its agenda might not be incomplete for long.