On: US supreme court to hear big oil’s bid to block climate damage lawsuits

The oil companies go before the highest court and ask it to silence the lower courts. This is the whole argument, stripped of its Latin: not that they owe nothing, but that no tribunal may hear the claim. I have read this petition before, in older bindings. Every power that fears judgment first seeks to choose its judge.

Let us apply the proper test. The companies say: climate is a federal matter, a matter for nations and parliaments, and a county court cannot weigh the atmosphere. There is a surface plausibility here - some questions do exceed a village’s jurisdiction. But watch the sleight. They do not argue that another competent court will hear the case. They argue that no court will. This is not a plea about which law applies; it is a plea that no law applies to them. A defendant who asks to be judged by no one is not making a legal argument. He is making a confession about what the verdict would be.

The distinction they blur is between the question “who caused?” and the question “who may ask who caused?” The first belongs to evidence, to the slow weighing of harms in a courtroom where documents are compelled and witnesses sworn. The second belongs to the architecture of courts themselves. The companies wish to answer the second question in a way that forecloses the first, before a single fact is examined. That is the disorder: procedure deployed not to find truth but to make truth unreachable.

And I note who speaks to whom. To the public, the companies offer images - the lamp, the engine, the warmth of the hall. To the court, they offer technicalities of preemption. Both are addressed to their audience, but only one of them is an argument, and it is the one that says: you may not look.

If the court grants the plea, it will not have ruled that they are innocent. It will have ruled that innocence and guilt alike shall never be determined. That is a strange kind of justice, and I do not find it in any commentary I trust.