During the Oral Arguments for 'Diamond International, LLC v. EPA', Supreme Court Justice Brett Kavanaugh questioned an attorney about the effect of California EPA standards on the markets.
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00:00Thank you, counsel. Justice Thomas, anything further? Justice Kagan? Justice Kagan? Justice Kavanaugh?
00:09I'm not sure there's a huge amount of difference between the rule and the backup position.
00:16I mean, the rule is based on the common sense predictable effects in a particular context,
00:22but either way you go, you get to the same destination. I guess I'm not seeing a huge gap.
00:28I agree, Justice Kavanaugh, we should win no matter what the court says, but I do think that a case like this,
00:39it's not that there should be daylight in the right outcomes, it's that once we make it about evidence,
00:47we're going to have to come in every case and there's going to be a debate, like,
00:50well, what do you have to show to trigger a common sense inference, and how common is that common sense?
00:54Well, what we said last year in FDA versus Alliance for Hippocratic Medicine,
01:00just summarizing the standing law should be, kind of gets at it, doesn't it?
01:06I would have thought so too, Justice Kavanaugh, but here we are.
01:08But look, I'll be the first to grant that if you take that paragraph in Alliance for Hippocratic Medicine
01:12and you say, look, even if we're not going to call it a rule, there are certain categories where we've said
01:17the effects seem awfully predictable, and this falls into one of the categories,
01:21that starts to look pretty much like a rule to me, but I'll grant that if that's language
01:25that the court thinks squares more comfortably with its standing precedents in general,
01:30it gets us to the, it should get us to the same place.
01:33Justice Kavanaugh.