Minimalism and the Supreme Court
Last week, I spoke on a panel at the fall meeting of the American Bar Association’s Section of Environment, Energy, and Resources. My remarks focused on the Supreme Court’s recent environmental law jurisprudence, and the influence (or not) of the judicial philosophy of minimalism (prominently espoused by Chief Justice John Roberts) on that jurisprudence. I concluded that, until the 2011 Term, the Court was markedly trending toward a minimalist approach in these cases, by issuing narrow rulings, deferring to the government, imposing heightened standing requirements, and demanding more from environmentalist plaintiffs seeking injunctions. But in the Court’s 2011 Term, I noted that the Court arguably retreated from its minimalist approach, and that the 2012 Term would offer at least two opportunities for the Court to establish a new trend or a retrenchment.
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