Does President Biden have any ability to resist his dark money allies? That question was teed up when the U.S. Supreme Court recently asked for the Biden Department of Justice, through the Solicitor General, to state its views on whether the Supreme Court should take up a dark-money-funded public nuisance lawsuit out of Hawaii.
The case is called Sunoco LP v. City and County of Honolulu, Hawaii. It is part of an effort by local Honolulu authorities to use public nuisance legal claims to impose liability on a bevy of energy companies for the effects of global climate change. Through the case, Honolulu is seeking to curtail global energy production and unlock billions of dollars, money they will use to pay for their own green priorities and force fundamental changes to what everyday Americans can buy — an EV in every garage, and gas stoves over the cliff, as it were.
The Left has been pushing these public nuisance lawsuits for years through a coordinated campaign involving public officials, trial lawyers, and advocacy groups. And this coordinated campaign is all backed by massive sums of liberal dark money.
Now the Supreme Court is showing an interest in taking up the key state sovereignty questions that these cases present and reviewing whether a single local government, backed by dark money donors, can reshape nationwide energy policy. But first the Justices want to hear from Joe Biden and his team of Supreme Court lawyers.
The order calling for Solicitor General Prelogar’s views (colloquially called a CVSG order) is noteworthy because it suggests that the Court might grant certiorari to take up the Honolulu case. But perhaps even more interestingly, it tees up a dispute between the interests of liberal dark money backers and the type of straight merits analysis that you would hope to see a United States Solicitor General follow in responding to this kind of Supreme Court request.
On its face, this case easily meets the thresholds for Supreme Court review. The case involves a state court of last resort (the Hawaii Supreme Court, powered by the Spirit of Aloha), deciding an important federal question (the scope of the Clean Air Act and federal common law), in a way that conflicts with a decision of a United States Court of Appeals (the Second Circuit). And the question of federal law raised in the case—whether a Hawaii public nuisance claim is barred by federal common law or the Clean Air Act—is important and should be settled by the Supreme Court. Indeed, the question is so important that it implicates both billions of dollars and nationwide energy policy.
Given all of this, it might seem like the Supreme Court’s CVSG order is almost perfunctory.
Well, not so fast. Joe Biden and his Solicitor General have already earned quite a reputation for throwing longstanding norms out the window at the Supreme Court when it means currying favor with the President’s political allies. In terms of the sheer number of Supreme Court flip-flops, Biden stands alone amongst his recent predecessors. And it wasn’t that long ago that the Biden Supreme Court team failed another one of these Supreme Court tests, when it jettisoned longstanding DOJ positions and traditional considerations when left-wing trial lawyer interests were at stake.
This history looms large in Sunoco v. City and County of Honolulu. The Supreme Court’s CVSG order in the Honolulu case is going to be a big test of how far dark money influence goes with the Biden Administration, and how much liberal dark money groups can get away with at the Supreme Court with the help of President Biden and his Supreme Court lawyers.
The tea leaves here don’t look good, given President Biden’s track record, and given that the Honolulu case is being backed by the Arabella Advisors network, which has been called the Left’s “Dark Money ‘ATM Machine.’”
But it is still important to watch this case, and the Solicitor General’s brief, to see if President Biden fails yet another test at the Supreme Court, and whether the Supreme Court has finally lost patience with the gamesmanship by President Biden and his team at the Court. For the sake of consumers across the country, here is hoping that President Biden’s team play it straight, putting the interests of the country and the rule of law ahead of those of their dark money friends, and that, no matter what, the Court takes up the case.
O.H. Skinner is executive director of Alliance for Consumers and the former solicitor general of Arizona.
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