A Rare Explanation of a 4-4 Split in AEP v. Connecticut

June 20th, 2011

Usually with a 4-4 split, the Court provides no explanation of the identities of how the Justices vote (such as in Flores-Villar v. United States). They simply write, “The judgment is affirmed by an equally divided Court.”

In A.E.P. v. Connecticut, Justice Ginsburg provides a clue as to how the Justices voted: four members “adhered” to the dissent in Mass. v. EPA.

The petitioners contend that the federal courts lack au-thority to adjudicate this case. Four members of the Court would hold that at least some plaintiffs have ArticleIII standing under Massachusetts, which permitted a State to challenge EPA’s refusal to regulate greenhouse gas emissions, 549 U. S., at 520–526; and, further, that noother threshold obstacle bars review.6 Four members of the Court, adhering to a dissenting opinion in Massachu-setts, 549 U. S., at 535, or regarding that decision as dis-tinguishable, would hold that none of the plaintiffs have Article III standing. We therefore affirm, by an equallydivided Court, the Second Circuit’s exercise of jurisdictionand proceed to the merits. See Nye v. United States, 313U. S. 33, 44 (1941).

Let’s see. Chief Justice Roberts, and Justices Scalia, Thomas, and Alito dissented in Mass v. EPA. It seems unlikely that Justice Ginsburg, or Breyer, who joined in the majority in Mass v. EPA switched their vote. Justice Sotomayor recused. Even assuming that Justice Kagan joined the dissenting view in Mass v. EPA (unlikely), we can guess who the other  justices were.

Hint: Roberts, Scalia, Thomas, and Alito.

Though, it is interesting that Alito’s opinion concurring in judgment, casting doubt on Mass v. EPA was joined only by Justice Thomas:

I concur in the judgment, and I agree with the Court’sdisplacement analysis on the assumption (which I make for the sake of argument because no party contends oth-erwise) that the interpretation of the Clean Air Act, 42U. S. C. §7401 et seq., adopted by the majority in Massa-chusetts v. EPA, 549 U. S. 497 (2007), is correct.

Why didn’t Roberts and Scalia join this opinion? At Volokh, Jon Adler speculates that “Perhaps because principles of stare decisis are strongest for questions of statutory interpretation and they have no interest in suggesting they would reconsider what constitutes a “pollutant” under the Act.” The Article III determination, I suppose, they would be willing to reconsider.