Does the Evolving Concept of Due Process in Obergefell Justify Judicial Regulation of Greenhouse Gases and Climate Change?: Juliana v. United States

Justice Kennedy’s Obergefell opinion, which held that same sex marriage is a fundamental right under the Constitution’s due process clause, reasoned that the principles of substantive due process may evolve because of changing societal views of what constitutes “liberty” under the clause, and that judges may recognize new liberty rights in light of their “reasoned judgement.” In Juliana v. United States, Judge Aiken used her “reasoned judgement” to conclude that evolving principles of substantive due process in the Obergefell decision allowed the court to find that the plaintiffs were entitled to a liberty right to a stable climate system capable of sustaining human life, and, furthermore, that these same evolving principles of substantive due process led the court to interpret the public trust doctrine to now include a similar right to a sustainable climate system. Relying on Chief Justice Robert’s dissenting opinion in Obergefell and a decision by Judge Sutton of the Sixth Circuit, one may criticize the Juliana decision for giving judges too much discretion to invent new due process rights and usurp the role of the legislature. More appropriately, Judge William Alsup of the U.S. District Court of the Northern District of California dismissed a public nuisance suit against major oil companies because Congress and the Executive Branch should decide climate change policy rather than federal courts. Professor Kenji Yoshino has argued that the Obergefell decision should be interpreted as “antisubordination liberty” that protects “historically subordinated groups.” Following the “antisubordination liberty” principle, alleged victims of climate change are arguably not entitled to special protection from the judiciary because the impacts of such harms affect every person in the United States rather than singling out under-represented minority groups, even if certain “historically subordinated groups” are affected to a greater degree by climate change. Instead of judicial intervention against President Trump’s climate policies, states and cities should exercise their right in our federalist system to adopt policies reducing the impacts of climate change. Furthermore, renewable energy appears to be on an unstoppable trajectory to replace fossil fuels, so there is no need for judges to usurp political policy decisions about future energy choices