The Ghost of Anne Gorsuch Burford
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With the Supreme Court now set to hear in February a major case over the regulatory powers of the Environmental Protection Agency, some are already suggesting Justice Gorsuch might lack objectivity. The justice’s “tangled history with the EPA” is, Bloomberg reports, a “concern.” It’s a reference to the justice’s mother, Anne Gorsuch Burford, whom, as Esquire retails it, President Ronald Reagan tasked with “running the EPA into the ground.”
“Revenge is a dish best served from a lifetime gig,” writes Esquire’s Charles Pierce. He refers to the defeat, some 40 years ago, of Burford’s heroic attempt to reform the EPA. Yet there’s no reason to doubt Justice Gorsuch’s capacity to decide objectively the dispute that is at the heart of the case before the court, West Virginia v. EPA. It asks the Nine to roll back the agency’s power to regulate smokestack emissions.
It’s “the equivalent of an earthquake” for “those who care deeply about the climate issue,” one Harvard law professor, Richard Lazarus, tells the Times. The suit argues that Congress delegated to the EPA power over “whether and how” to reduce fossil fuel usage that is so “unbridled” as to be unconstitutional. A win by the states, mining concerns, and energy companies in West Virginia would be a major setback for the EPA.
It’s no surprise that detractors of Justice Gorsuch are trying to defang him by bringing up his mother. Dialing back EPA overreach is precisely why Reagan brought Burford in from Colorado to run the agency. She was the first woman to do so. She sought to cut the budget, and, the Washington Post reports, boasted of reducing “the thickness of the book of clean water regulations from six inches to a half inch.”
Burford “could kick a bear to death with her bare feet,” Denver’s Rocky Mountain News reckoned. Senator Bentsen of Texas called her, along with Interior Secretary James Watt, “the Bonnie and Clyde environmental wrecking crew.” Before she arrived, the EPA was “efficient and capable,” the Times complained in 1983. “She has turned it into an Augean stable, reeking of cynicism, mismanagement and decay.”
Yet after fewer than two years in the job, Burford stepped down. That was after Congress cited her for contempt for refusing to provide documents relating to a Superfund toxic waste program. Burford recalled in her memoir her son Neil telling her at the time: “You raised me not to be a quitter. Why are you a quitter?” Though his mother died in 2004, some would like to suggest that the question still resonates.
When President Trump nominated Judge Gorsuch to the Supreme Court, the Sierra Club speculated then that the nominee’s skepticism about environmental laws “may be a matter of maternal trauma as much as conservative ideology.” In Esquire Mr. Pierce wrote of “longstanding family vendettas.” Those words aren’t just cynical. They could prompt demands for Justice Gorsuch to recuse himself.
We ourselves haven’t a gluon of doubt that Justice Gorsuch will follow the law and the Constitution. The stakes in the case, moreover, tower over any one individual. The scale of the powers that the Congress has tried to slough off to the EPA have been rarely rivaled since those the Congress tried to grant to FDR’s National Recovery Administration. That was the issue with which the Supreme Court, in Schechter v. United States, gutted the New Deal.
It’s a moment to remember that Schechter was a unanimous decision. “Congress cannot delegate legislative power” by giving the executive branch “an unfettered discretion to make whatever laws” it might deem necessary, Chief Justice Chief Hughes wrote. Calls to drive Justice Gorsuch off the EPA case underscore the sense that it’s time for the Supreme Court to renew that point. The only motive the court needs can be found in the oath the justices must swear to support the Constitution.
President Reagan with Anne Gorsuch in March 1982 at the Oval Office. White House photo, via the Reagan Library via Wikipedia.