august 1862

Today’s major environmental ruling from the Supreme Court, West Virginia v. EPA, is probably most notable for what it did not do.

It did not say that the Environmental Protection Agency is prohibited from regulating heat-trapping carbon pollution from America’s existing power plants.

It also did not strip the EPA of its ability to regulate climate pollution at all.

In short, it did not, as some progressives feared, blast away any possibility of using the federal government’s environmental powers to solve climate change, the biggest environmental problem of our time.  

Yet its effects will be felt for years to come. The ruling limits the EPA’s ability to regulate climate change, but leaves enough room that the agency still must try to do so. With these constraints, the Court is forcing the agency to approach the problem of carbon pollution with brute-force tools. In short, the Court has ensured that climate regulation, when it comes, will prove both more cumbersome and more expensive for almost everyone involved.

At the Global Fact international fact-checkers’ conference I attended in Oslo earlier this month, there were workshops on digital investigation, lectures on media literacy, even sessions devoted to hateful social media of the kind that sometimes gets directed at people who check facts for a living—and there are many such people. Fact-checking is now a sophisticated, high-tech profession, with members in places all over the world—Colombia, Canada, South Africa, Taiwan. What they can do with tiny scraps of evidence is almost unsettling. Fact-checking websites and fact-checking columnists can tell you how to identify a video that has been manipulated, how to spot a fake social-media account, how to geolocate an atrocity just by examining a single photograph that has appeared online.

From the moment the attack on the Capitol began, on January 6, 2021, Donald Trump’s moral culpability was clear. That mob would never have assembled on the National Mall but for Trump’s decision to relentlessly lie about the results of the 2020 election.

His legal culpability, however, was more ambiguous. We did not possess any evidence that he directly coordinated with the rioters prior to the invasion of the Capitol, and although his speech to the mob on January 6 itself admonished his followers to “fight like hell” and warned them that “you will never take back our country with weakness,” it also contained an explicit statement that they should march to the Capitol to “peacefully and patriotically” make their voices heard.

During former President Donald Trump’s second impeachment, even when Republicans insisted that the assault on the Capitol was an unfortunate consequence of heated rhetoric, most did not attempt to defend Trump’s conduct on the merits. Instead, they relied on the absurd technicality that the president was no longer in office, and therefore could not be convicted.

That was the rationale of Senate Republican leader Mitch McConnell, who accused Trump of a “disgraceful dereliction of duty” and afterward voted to acquit. McConnell then suggested that Trump could be criminally prosecuted, comfortable in the suspicion that would never happen.

Other Republicans, including Senator Marco Rubio of Florida, insisted that seeking accountability for an attempted coup would be “incredibly divisive,” and was therefore not worth doing. “The notion that we’re going to spend a week or two weeks on a trial on somebody who’s not even in office—it sounds to me like a waste of time,” Rubio told Politico in 2021.

The White House’s response to last week’s Supreme Court decision overturning Roe v. Wade, which in 1973 established a constitutional right to abortion, once again has exposed the tension between the conciliatory instincts President Joe Biden developed during his long career in Washington, D.C., and the ferocity of the modern combat between the two major political parties.

An array of frustrated Democrats this week openly complained that Biden and other administration officials had failed, in their initial reactions to the ruling, to reflect the urgency and anguish of abortion-rights supporters. Although Biden quickly denounced the decision last week, he has avoided any broader condemnation of the Court’s direction or legitimacy and dismissed proposals for changing its structure. Biden’s aides have stressed the limits of what the executive branch can do to mitigate the impact of the ruling.