When I was a 7th grader living in a Maryland suburb of Washington, D.C., my school system was one of many around the nation to launch a program of school busing to desegregate its schools. After 18 years, the 1954 decision in Brown v. Board of Education finally traveled a handful of miles down the road from the Supreme Court and arrived in Prince George’s County, Maryland.
The program was anything but voluntary as far as the school system was concerned, requiring a court order to make it happen. In fact, the order was very specific: It didn’t simply direct the county to desegregate; it required the county to submit for court approval specific plans laying out which children would go to which schools. It took the county, which fought the order right down to the last possible moment, several tries before the court finally signed off.
I was reminded of that as I listened to the latest episode of Connect the Dots, CPR’s podcast hosted by Rob Verchick, on the Juliana v. United States case. Verchick and his guests, CPR Member Scholars Melissa Powers and Karen Sokol, discuss in detail a recent ruling by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, dismissing a climate crisis suit brought by a group of 21 young people. The youth plaintiffs made the novel but sympathetic argument that the government had failed in its constitutional obligation to actually do something about climate change and that it needed to act before we run out of time to make a difference.
The panel ruled against them, saying they lacked standing to sue. Unburdened by a law degree as I am, I was surprised when I read that because I’d understood “standing” to mean that the plaintiff in a case had to be able to cite some actual or imminent harm done to them by the defendant (in this case, the U.S. government, which stood accused of adopting policies that furthered climate change, causing a variety of damages). Surely those two criteria – harm and causation – were met. But as I came to learn in reading about the ruling, the additional factor that comes into play in standing decisions is redressability – whether it’s within the reach of the court to order a remedy that would actually fix the problem. The court concluded that a solution was beyond their reach and tossed the case.
That explanation was far from satisfying, either substantively or legally. But Powers, Sokol, and Verchick explain – and critique – the argument in a way that makes some sense. Most striking to my ears is Powers’ explanation, starting about 13 minutes into the podcast, of the court’s all-or-nothing reasoning that, since what was within the court’s reach to order might affect climate change but not stop it, it could not fix the problem, and that the plaintiffs therefore lacked standing to sue. As far as the majority was concerned, a solution was simply too complex, too involved, too legislative in nature for the court to take on, and so, as the dissenting judge in the 2-to-1 ruling observed, “My colleagues throw up their hands, concluding this case presents nothing fit for the Judiciary.”
And that’s where my mind turned to the Prince George’s busing case of 1973, in which a different court was willing not just to order that the county desegregate but to roll up its sleeves and dig into the nitty gritty of exactly how the county should do it. Why then, but not now, I wondered. As it turns out, that topic came up just a few minutes later in the podcast.
And right then was when the podcast lived up to its name. From school busing to climate litigation, dots connected. Give it a listen and see what you think.
