Two new SCOTUSblog Outside Opinions take up constitutional questions, but from very different angles. One analyzes the Supreme Court's pending climate case, Suncor Energy v. County Commissioners of Boulder County; the other challenges the legitimacy of judicial review itself. The essays do not engage each other, and their only common thread is a concern with how the Constitution allocates power.
The Suncor essay argues that the Constitution's structure should decide the case. It contends that state-law claims over interstate and international greenhouse-gas emissions intrude on federal foreign affairs and on the Supreme Court's original jurisdiction over interstate disputes, citing precedents like Zschernig v. Miller and Georgia v. Tennessee Copper. The essay notes that the Colorado Supreme Court allowed Boulder's suit, while the 2nd Circuit dismissed similar claims in City of New York v. Chevron, and quotes Chief Justice Roberts' remark that a win for Boulder could trigger lawsuits from municipalities nationwide.
The second essay argues that the Supreme Court's power to have the final word on constitutionality is nowhere in the Constitution and should be reconsidered. It claims that Federalist Paper No. 78 and Marbury v. Madison support only a narrow review of laws violating explicit constitutional bans, not broad judicial authority. The essay catalogs historical rulings it says deepened racial and economic inequality, from the Civil Rights Cases to recent campaign finance and gerrymandering decisions.
Because the two pieces address separate subjects, there is no direct agreement or disagreement between them. The Suncor essay assumes the legitimacy of judicial review while debating its scope; the other questions that legitimacy entirely. Readers looking for a unified argument will not find one, but together the essays illustrate ongoing debates over the Constitution's structural limits on both states and courts.