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Abstract
Courts in key climate change cases have abdicated their constitutionalresponsibility to protect a prejudiced and disenfranchised group (nonvotingminors and future generations) and remedy an insidious pathology in publicdiscourse and the political process: the industry-funded climate disinformationcampaign. This Article posits that this abdication results from courts’ uneasinessabout displacing the prerogatives of democratically elected bodies. Thisuneasiness is misplaced. Court engagement with climate cases would strengthendemocracy in accord with widely accepted justifications for countermajoritarianjudicial review. This Article first describes in detail how courts exhibit afrustrating reticence to accept jurisdiction over cases that present questionsrelating to core climate policy, such as whether large emitters or fossil fuelproducers have common law liability for climate harms and whether thegovernment has a common law or constitutional duty to address climate change.In not a single case raising such claims (and they number well over thirty) has acourt permitted the case to proceed to trial. Courts dismiss these claims underthe mantle of a variety of justiciability doctrines (standing, political questiondoctrine, displacement); these doctrines often serve as vessels for courts toexercise judicial restraint, and courts’ language and reasoning in the climatecases confirms that the courts are, indeed, motivated by concerns of judicialoverreach. The Article then offers a positive account for why judicialengagement in the climate cases is consistent with our system of democracy, evenas understood by seminal scholars who define relatively narrow boundaries forcountermajoritarian judicial review. In particular, the Article will situatearguments for judicial review in climate cases within the work of John Hart Ely,Jurgen Habermas, and Frank Michelman.