Conspiracy theorists are going crazy about Justice Antonin Scalia’s death. 79 isn’t that old, they say. No autopsy, they point out. County Judge Cinderela Guevara pronounced him dead over the phone – taking the word of the law enforcement officers on the scene that he’d died of a “heart attack.” Death by heart attack cannot actually be determined without an autopsy, and certainly not over the phone, and she later revised her statement to say that she meant that his heart stopped, that his death was of natural causes. His body was found by John Poindexter himself, the billionaire-owner of the resort, rather than one of his thousands of employees, or one of the 35 other weekend guests, or even one of the U.S. Marshals who typically accompany Justices on road trips.
But… The only way a conspiracy theory works is if a bad guy or bad organization benefits by Justice Scalia’s death at this point in time. (Typically, a 79-year-old with health issues would not need to fear assassination.) As John Grisham made clear in The Pelican Brief, any Supreme Court Justice could be an assassination target. So a good conspiracy theory would have to come down to the timing. Was there anything particularly suspicious about the timing of Scalia’s death?
Just five days before his death, the Supreme Court issued a stay to the EPA to block it from beginning to enforce the new, stricter regulations that resulted from the Clean Power Act passed last August. What is unusual about this is that it simply is not how the Court operates. Normally, a case is heard in a lower court, one of the two sides disagrees with the verdict and appeals to the Supreme Court. After hearing both sides, the Supremes hand down their ruling. For them to issue orders to the EPA in ADVANCE of a lower court ruling being appealed to them (in the absence of any urgent circumstances) is unheard of. The Court’s decision to issue this stay was 5-4… and Scalia was one of the 5.
So what? The edict seems to benefit companies that want more time to make more money with looser regulations – Big Coal comes to mind. But if Big Coal just got a ruling that will make them billions, why kill Scalia? Well then, could he have been killed to prevent his weighing in on some future decision? Let’s see:
On the docket in the next couple weeks is an argument involving the Fed and two states, Maryland and New Jersey, over determining electricity prices. A Pennsylvania-based electric company called PPL and, no doubt, dozens of others, stand to gain or lose millions depending on how the Supremes decide the case. As it stands, the Federal Energy Regulatory Commission, FERC, controls wholesale electricity prices, and state regulatory agencies set prices for what retail customers pay. The states have incentive programs for electrical providers like PPL in an effort to encourage new energy generation plants by ensuring that they will have fixed contract rates and stable revenues from retail electricity purchasers. The Obama administration has argued that the state programs interfere with FERC’s authority to regulate wholesale electricity markets. So the Court will decide who’s right.
The Court considered another FERC case last month, from which Justice Alito recused himself. The justices are not required to give a reason. However, since he recused himself just when motions started being filed by a power company called NRG Energy, the assumption is that he owns stock in NRG or a similar company. Without Alito, the decision was 6-2 to reverse the lower court’s ruling that a FERC rule was wrong. The gist of the FERC rule in that case was to reward companies that commit to reducing energy consumption as if they actually generate electricity. Scalia was one of the two dissenters in that decision. Scalia noted in his dissent that ‘the government’s bright-line position in the Maryland case seems to square with my own.’ (“Bright line” means, if you’re selling electricity you’re a wholesaler and your prices are subject to FERC, if you’re buying electricity you’re a retail customer and your prices are controlled by the state, no exceptions.) In other words, he felt that the FERC rule equating a ‘saver’ with a ‘wholesaler’ was ridiculous; it blurred the “bright line.”
If someone in the energy industry was worried that Scalia would cast a deciding vote on February 26 taking away their guaranteed retail price for electrical generation, with millions or billions of dollars on the line, would they actually take out a hit on a judge? Alternatively, without Scalia, a Court of 8 could be split 4-4, which is an automatic win for any petitioner who won their lower court ruling. But would someone really assassinate a Supreme Court Justice on the off chance of deadlocking the Court?
Now, if another Justice dies in the next 10 days, (or, I guess, if I die under mysterious circumstances) then, yeah, something is definitely wrong.
But that sort of thing only happens in a John Grisham novel.
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