NYT: For the Chief Justice, a Dissent and a Line in the Sand

By LINDA GREENHOUSE
Published: April 8, 2007
WASHINGTON

Justices Say E.P.A. Has Power to Act on Harmful Gases (April 3, 2007) WHEN the Supreme Court ordered the Bush administration last week to take global warming seriously, the headlines the decision generated were well deserved. This was a major ruling, likely to help shape an important policy debate.

It may be heresy, then, to suggest that the court’s directive to the Environmental Protection Agency was not necessarily the most important part of the decision.
Well after the debate over climate change moves to other forums — as it promptly did in the days following the decision — the case is likely to be remembered for two other reasons.

One is how the 5-to-4 majority widened access to the federal courts, reinvigorating the doctrine of environmental standing by giving a surprising new twist to the court’s long-running debate over states’ rights. The other is how vigorously Chief Justice John G. Roberts Jr. expressed his displeasure at that development. His 15-page dissenting opinion, his first of the term, served as a declaration of his deepest jurisprudential beliefs and highest priorities. It thus offered the most revealing portrait in the 18-month history of the Roberts court of the new chief justice at work.

In interviews and public appearances, Chief Justice Roberts has set a new standard for visibility, and the portrait of the chief justice as an avatar of a new era of consensus on a divided court has gained considerable currency in articles and even books.

This case was a rude reminder that his careful self-presentation comes with a price. He is no more likely than any other justice to yield on what he regards as a matter of principle. But the raised expectation of consensus magnifies a defeat like this one: his consensus project lost as well.

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It was his vehemence rather than his dissenting vote that was the surprise. This was no dry document written by a law clerk. The chief justice was spending capital and speaking in his own voice. The opinion was reminiscent of many by his mentor, William H. Rehnquist, for whom he clerked. Standing was a big issue back then, and Associate Justice Rehnquist dissented from decisions that interpreted the doctrine generously. One was a case called United States v. Students Challenging Regulatory Agency Procedures, or SCRAP. (cont'd)

http://www.nytimes.com/2007/04/08/weekinreview/08greenhouse.html?ref=science