The Common Law’s Growing Shadow

In its first full Term with its newest member, the U.S. Supreme Court marched decidedly to the right with decisions narrowing abortion rights, striking down affirmative action programs, invalidating campaign finance regulations, and making it more difficult for victims of employment discrimination to seek redress. In the face of this rightward shift the most surprising decision of the Term was the Court’s embrace of claims that the U.S. Environmental Protection Agency (EPA) had acted unlawfully by refusing to use the Clean Air Act to combat climate change. InMassachusetts v EPA, the Court held that EPA had the authority to regulate emissions of greenhouse gases from motor vehicles under the Clean Air Act, and it ordered the agency to reconsider its refusal to do so. The Court’s decision vividly illustrates important features of its approach to regulatory issues today. The Court decided the case by a 5–4 margin, with Justices in the majority and dissent sharply