WASHINGTON (Reuters) - For more than 30 years, liberal Ruth Bader Ginsburg and conservative Antonin Scalia have been the odd couple of top U.S. courts, the closest of personal friends and fiercest of judicial foes. On Tuesday their differences played out vividly in a Supreme Court decision over the regulation of air pollution.
In dueling renditions that together lasted about 20 minutes, the two eldest justices on the Supreme Court bench staked out distinct positions on regulatory power.
At 81, Ginsburg spoke for a 6-2 majority that revived an Environmental Protection Agency (EPA) cross-state pollution rule. Scalia, at 78, spoke for the two dissenters, accusing the majority of fueling “the uncontrolled growth of the administrative state at the expense of government by the people.”
Typically in the marble courtroom at the staid Supreme Court, only the justice in the majority reads excerpts of an opinion from the mahogany bench.
Justices in dissent voice their views when they want to draw particular attention to them. It happens only occasionally during a nine-month term. In the last two sessions, it occurred seven times each; so far this term, it has happened three times. Scalia has been doing it off and on since 1988, two years after joining the Supreme Court bench.
The case came to the justices from the Washington, D.C.-based federal appellate court that routinely hears disputes over government regulation and where Ginsburg and Scalia first forged their friendship as judges and began their routine of travel, the opera and New Year’s eves together.
Their clash on Tuesday reflected the competing views of regulators that routinely emerge in national litigation on the environment. As Ginsburg deferred to the EPA’s interpretation of the Clean Air Act, Scalia railed against an “unelected bureaucracy operating under vague statutory standards.”
In this case, Ginsburg and the three other liberal-leaning justices were joined by Chief Justice John Roberts and Anthony Kennedy, both conservatives, although that is not necessarily the sign of a trend. Neither liberals nor conservatives predominate in this line of cases, which tend to be few in number and closely fought.
In a more personal vein, Tuesday’s courtroom drama showed the two justices still energized to take each other on. Ginsburg especially has been watched for any signs she might be slowing down and inclined to retire. Nearing the end of her statement of the majority opinion, she referred to Scalia, her voice rising, with a slightly amused tone, as she observed how “vigorously” he had dissented. She chided his attempt to “resuscitate” a lower court’s view of EPA authority.
Their statements also reflected their signature styles. Characteristically serious, Ginsburg quoted the Book of John (“The wind bloweth where it listeth…”) while Scalia, routinely sarcastic, at one point said: “As one of my grandchildren might say, ‘Well, duh!’”
At issue is a regulation requiring certain states to curtail industrial pollution that contributes to unhealthy air in nearby states. The U.S. Court of Appeals for the District of Columbia Circuit had struck down the regulation, saying the EPA exceeded its authority in setting clean-air targets for states.
In reversing the appeals court, Ginsburg said the EPA acted within its authority when it required 28 states to reduce emissions from coal-fired power plants, based on a cost-effective approach to responsibility among upwind states.
Ginsburg, appointed to the D.C. Circuit in 1980 by President Jimmy Carter and then elevated to the Supreme Court by Bill Clinton in 1993, said the D.C. Circuit failed to give the EPA “due respect” for its interpretation of the Clean Air Act.
Scalia, appointed by President Ronald Reagan first to the D.C. Circuit in 1982 and then elevated by Reagan in 1986, rejoined that the majority had “no textual basis - zero textual basis” in federal law for accepting the EPA position.
It was hardly the first time these two justices had jousted from the bench. A year ago Scalia prevailed in a dispute involving class-action lawsuits, and most memorably in 1996 Ginsburg, a former women’s rights advocate, won a majority to strike down the state-run Virginia Military Institute policy of admitting only men.
Through it all, they have remained pals. Ginsburg once told this reporter that she loves Scalia, “but sometimes I’d like to strangle him.”
Reporting by Joan Biskupic; Editing by Howard Goller and Andrew Hay