Julianna v. United States, better known as the Kids Climate case, at first appeared to be one of those goofy cases that stood no chance of surviving. Began in 2015, the case was about a bunch of young people suing the federal government for violating their right to life by failing to prevent climate change. It wasn’t that they had no issue worthy of extreme concern, or even that they didn’t have a point, but what they never had is standing.

The Juliana litigation began in 2015, when a group of youth plaintiffs filed suit alleging, among other things, that the federal government’s failure to control greenhouse gases violates their substantive due process rights to life, liberty, and property, including a right to a “stable climate system,” violates their right to equal protection, and failed to uphold its “public trust” obligation to hold certain natural resources in trust for the people and for future generations.

Their situation was no different than everyone else’s, and nothing had been done to them that hadn’t been done to everyone else. Sure, they were injured in the sense that everyone was injured, assuming one could blame climate change in general on the government’s acts and omissions, but there was no direct injury nor specific cause. It was chaos theory as a cause of action. After District of Oregon Judge Ann Aiken refused to dismiss the case, it went up the chain.

As one would expect, the federal government sought to dismiss the case. Not only did the district court deny the motion to dismiss, it also denied the federal government’s request to certify the decision for interlocutory review. Faced with the prospect of extensive discovery requests and a [long] trial, the federal government sought a writ of mandamus and stay of the proceedings, first with the U.S. Court of Appeals for the Ninth Circuit, and eventually at One First Street.

While the Supreme Court did not grant the federal government’s motions, it issued two orders—one in July and one in November 2018—that made clear the justices believed Judge Aiken had misapplied the relevant rules (including that governing interlocutory review) and not-so-subtly directing the Ninth Circuit to get the district court in line. The Ninth Circuit issued a stay and Judge Aiken reconsidered her prior decision to deny interlocutory review, leading to the Ninth Circuit’s decision in January 2020 to dismiss the case on standing grounds.

So duly spanked, did Judge Aiken toss the case? No. No she did not.

Plaintiffs’ allegations are that collective resolve at every level and in every branch of government is critical to reducing fossil fuel emissions and vital to combating climate change. That curbing climate change requires an all-hands-on-deck approach does not oust the Court from its province or discharge it of its duty under the Constitution to say what the law is. Marbury 5 U.S. at 170. Combatting climate change may require all to act in accord, but that does not mean that the courts must “throw up [our] hands” in defeat. . . .

The legislative and executive branches of government wield constitutional powers entrusted to those branches by the People through the democratic process. … So too, as part of a coequal branch of government, the Court cannot shrink from its role to decide on the rights of the individuals duly presenting their case and controversy. Marbury, 5 U.S. at 170. . . .

As poorly as the collective legislative and executive branches of government may be doing, it is not the province of the judiciary to seize control of the entire government under some sophist theory that if a judge believes they’re doing a lousy job of it, it’s her duty to take over.

Exercising “reasoned judgment,” the Court finds that the right to a climate system that can sustain human life is fundamental to a free and ordered society.

Defendants contend plaintiffs are asserting a right to be free from pollution or climate change, and that courts have consistently rejected attempts to define such rights as fundamental. Defendants mischaracterize the right plaintiffs assert. Plaintiffs do not object to the government’s role in producing any pollution or in causing any climate change; they assert the government has caused pollution and climate change on a catastrophic level, and that if the government’s actions continue unchecked, they will permanently and irreversibly damage plaintiffs’ property, their economic livelihood, their recreational opportunities, their health, and ultimately their (and their children’s) ability to live.

What, exactly, would Judge Aiken do about it?

We cannot vow to uphold the Constitution’s protection of a God-given right to life, and at the same time, exercise “judicial restraint” by telling plaintiffs that “life” cannot possibly include the right to be free from knowing government destruction of their ability to breathe, to drink, or to live. “It cannot be presumed that any clause in the [C]onstitution is intended to be without effect.” Marbury, 5 U.S. at 174. Plaintiffs have adequately alleged infringement of a fundamental right and defendants’ motion to dismiss is denied on this issue.

For the plaintiffs, and obviously the judge, the issue is about stopping the government’s exercise of political choices that cause climate change, which the court accepts as violating the constitutional right to life. The same would be true of enjoining cars because they occasionally run over people causing death, or sugary soft drinks, or, well, the list goes on forever. But it’s so astoundingly far beyond the authority of the courts to address as to be laughable.

Yet, the case goes on, and Judge Aiken, who just took senior status, is doing everything she can to make a challenge to her judicial activism difficult.

The most startling part of Judge Aiken’s decision is not the sweeping assertions of constitutional rights, but her refusal to certify the opinion for interlocutory review, without comment. This is striking because it was Judge Aiken’s prior refusal to permit interlocutory review which ultimately prompted two separate Supreme Court orders indicating that she had misapplied the standard in 28 U.S.C. §1292 and the Ninth Circuit’s ultimate stay.

The fear isn’t that the case won’t eventually be dismissed, but that this encourages impact nuisance suits before activist judges who have no qualms about abusing their power to push an agenda to control the political branches of government when they make policy choices (remember, if they choose not to decide they still have made a choice) with which the judge disagrees. Attacking a specific law or action is one thing, provided the plaintiffs are directly injured, but this devolves to the level of attacking the generic failure of government to fix what the plaintiffs and judge consider an existential issue. Chaos, indeed.