SCOTUS: What Should We Tell The President?

Lawyer Andrew Cohen analyzes legal affairs for CBS News and
Good morning, Mr. President. Do you want the good news or the bad news? But before I tell you which is which, I have got to warn you: the good news for you isn't as good as the bad news is bad.

Since it is Monday, I'll start with the good. The Supreme Court this morning announced that it would not interfere with your plans to go forward with military trials for the terror detainees down at Guantanamo Bay, Cuba. Only three Justices wanted to take an appeal of a lower court ruling that had upheld the Military Commissions Act-- that new federal law your White House pushed through the Congress just before it turned Democratic. And three Justices aren't enough to get a case heard by the entire Court.

The Court's non-action action this morning doesn't mean that the Justices agree that the new law is constitutional—that truly would have made your day. All they have said is that they do not want to take up the issue now; that they prefer to wait to see how the tribunals proceed down there under the new rules. This means, Mr. President, that once your military officials convict some of those terror detainees—and that's the whole point, right?—this case may again get before the Supreme Court, this time with a little more momentum for the Justices to get involved. So, in this case at a least, a no-decision by the Court is a really good development for you. Let' the tribunals proceed!

What's that? You want the bad news. Well, as I said, it's pretty bad news for you and your administration (and the Environmental Protection Agency). The same Supreme Court today, by a 5-4 split, declared that your folks must stop interpreting the Clean Air Act so narrowly as to avoid regulating greenhouse gases that contribute to global warming. The Justices ruled that your EPA hasn't legally justified its decision not to regulate those gases and that the dozen or so states who sued the Agency to push it to be more aggressive in combating global warming had a right to do so.

This means, Mr. President, that your environmental policy when it comes to global warming— do little or nothing—now has been rejected by the judicial branch as well as the legislative branch (in control of your political foes, remember). So the White House, neither politically nor legally, will be able to stall much longer in its efforts to diminish the impact of global warming. If the EPA doesn't get going, the lower federal courts, buoyed by this ruling, will push it to do so. And now the Congress has a powerful legal argument to make in the court of public opinion to change the language of the Clean Air Act to make explicit the EPA's responsibility to aggressively regulate greenhouse gases. Either, way, you lose.

You lose, Mr. President, and it will be hard even for your veteran spinmeisters to spin this as a victory for your side. But you may be happy to know that tens of millions of Americans, and maybe a billion or so people around the world, actually are delighted that the Supreme Court is pushing your administration to do more to stop global warming. So the bad news for you actually is good news for them just like the good news for you on the Guantanamo Bay trials is really bad news for the detainees down there who now face trials with rules that haven't yet been vetted by the nation's highest court. The Supreme Court giveth and the Supreme Court taketh away.