It’s a unique experience to develop a complaint over time and build a legal case in a dispute that reaches the Supreme Court of the United States. Erwin Griswold was the former dean of Harvard Law School and solicitor general at the time. He stood in front of the Court in his gray morning coat and told the black-robed justices, “We are in a very remarkable situation.” I knew it was more than just the complaint. He had a condescending, if not uncomfortable, admiration for five law students. He wasn’t alone.
After the founding of Students Challenging Regulatory Agency Procedures in September 1971, I was the chair. A third-year student, five, then three, of us fought the nation’s Railroads, and their elite, white-shoed law firms, before the oldest regulatory agency of the United States, the Interstate Commerce Commission.
Our group was divided into members with different moral and practical goals, but we all shared the responsibility of knowing the laws and forces in play. They were not alone. Law school faculty and alumni also joined them in their dislike of this impertinent way for students to express themselves and act.
It was their own indifference towards the law or unearned respect for “adults” that stood between them and the success of the course “Unfair Trading Practices,” which allowed students to create a group project, without supervision or guidance. They were then able to pursue the project responsibly. He made us read the book, go to every class and take part in discussions.
Other students took the final examination. We questioned the failure of ICC and Railroads to perform their publically defined duty.
Each of the antagonists had a reason to be uncomfortable. We had mastered the effect–environmental, corporate, and financial–of billions of dollars of nationwide freight rate increases calculated in a deliberately impenetrable process, inaccessible to the public. Our research confirmed that we had witnessed corruption, financial manipulations, criminal indictments against railroad officials, the manipulation of freight rates in order to benefit the railroad’s exploitation its own natural resources, and an abject failure by the government to protect public interest as defined in law and historical and cultural imperatives. We also learned how law firms and the United States supported much of this conduct.
We sought to impel the ICC to prepare an impact statement, required by the new, largely untested National Environmental Policy Act (NEPA), of the effect of the nationwide freight rate increases that encouraged the unnecessary destruction of natural resources and discouraged the movement and daily use of millions of tons of recyclable–“scrap”–material being discarded, burned, and dumped.
We had invaded. Knowledgeably. Our first submission to the ICC, a “Petition for Extraordinary Relief”, in December 1971, requesting a refund of a billion dollars for all shippers, until the law was enforced, prompted the New York Times and multiple other national papers, as well as bipartisan support by Congress.
Banzhaf’s training ended soon after; we stayed. We sued in April and May of 1972. SCRAP and this author wrote the complaints.
The United States and Railroads immediately argued with a cocky arrogance that SCRAP lacked the “standing to sue.” This was because the Framers of the Constitution had only used one phrase to limit the Court’s authority: “The judicial power shall extend to all cases [and] controversy ….”. It was this argument alone that Solicitor-General Griswold made before the Supreme Court. SCRAP was prepared, as proactive law student, since the beginning of our petitions and complaint in 1971. We sued both as a collective and individually. We listed our damages: financial, aesthetic, recreational and procedural.
In the language of textbooks and lawyers, the result was United States of America v. Students Challenging Regulatory Agency Procedures. On June 18, 1973 the Court ruled against the arguments made by the United States, the ICC, and the nation’s Railroads. The Court ruled that SCRAP had standing to sue. For reasons I didn’t appreciate as much as I do today, the “special experience” I had in law was now unique historically.
The arrogance of the lawyers? Justice Potter Stewart ridiculed it in his opinion, saying: “If these allegations [in SCRAP’s amended complaint] are false, as they now claim, then the railroads should have” challenged the claims. They never did.
Two generations of Supreme Court Justices have made extraordinary efforts, starting with Lewis Powell, who did not vote in the SCRAPcase because he represented the railroad industry, and followed by Antonin Scalia, and John Roberts Jr. to depart from words used by Framers to determine the Court’s authority and standing to sue.
In play were SCRAP and SCRAP for law students. Scalia believed that SCRAP was a “generation” (see The Doctrine Of Standing As An Essential Element Of Separation Of Powers [1983]). Roberts believed that SCRAP, the decision and his denigration of this group were a “generational stigma” he wanted to eliminate but was unable to (see Roberts dissenting opinion in Commonwealth of Massachusetts v. EPA 2007). It also seems that the issue was how to get law firms to accept pro-forma attacks to protect their corporate clientele. The “adults”, who needed help, were the law firms.
Powell’s corporate imperatives, outlined in his Memorandum, and the institutions, money, and support that the Chamber of Commerce received from it and its supporters made his departure unmistakable. Powell and Chief Justice Warren Burger, who relied on United States V. Richardson[1974] to define standing to sue, no longer wanted to limit the definition of standing by “narrow confines”. They began to broaden the easily malleable nonconstitutional, “prudential limits” or “prudential walls.”
He wrote that “constitutional limitations” are not the only relevant considerations when determining standing to sue. In Warth v. Seldin (1975), he used these nonconstitutional provisions, which led conservative Justice Byron White to join other dissenting Court members in stating that the true purpose of the newly introduced requirements is to exercise power and not law. White and other dissenting members of the Court agreed that “[C]ourts” cannot refuse to hear a merits case because they don’t want to.
Yet that outcome became the Powell-Scalia-Roberts norm.
One fact has remained unchanged over the years. Charles E. Perkins, the president of Chicago, Burlington and Quincy Railroad, stated in 1887, just after the ICC had been formed, that “the ICC is a good way to satisfy the public’s desire for a government-supervised railroad, but the actual supervision is almost completely nominal …. It is wise to use the commission, not destroy it.
This corporate comfort had not changed since 1971 or 1972. In my book T , I describe it this way: Five bold law students challenge corporate greed and change the law.
My head moved upward as I looked up to see the entire building in a new way. The Commission is the oldest regulator in the country of the Harrimans and Stanfords. The Railroads were moving with efficiency, using their power to manipulate their way from office to office. They did so according to their own rules, and they did it with cunning. They were still orchestrating. There was no change. Now I thought that the Commission was their place. They owned the Railroads, which was all of them.
In 2023, nothing has changed. It is not surprising that the so-called “accident” in East Palestine, Ohio was a repetition of the same failures of the railroad industry, and the government, both the state of Ohio as well as the federal agencies responsible to ensure railroad safety, dating back more than a century. The pro-forma remedies, such as the lawsuits and congressional hearings, are only aimed at the Railroads for this one instance of misconduct. The lawsuits, congressional hearings, and pro forma palliatives are all directed at the Railroads and this singular moment of wrongdoing.
Charles Perkins’ haunting apparition is not limited to railroads. It is still roaming the land.
Where are today’s law students?
Neil Thomas Proto, a lawyer (ret.) In public service (Appellate Attorney, United States Department of Justice, General Counsel, President’s Nuclear Safety Oversight Committee), and in private practice (Yale and Georgetown’s McCourt Public Policy School), he taught at Yale University and Georgetown’s McCourt Public Policy School. He is also the author of Fearless: A. Bartlett Giamatti, and the Battle for Fairness in America, which won the 2019 Fearless Award. His play The Reckoning, Pecora for Public, was performed in Seattle in 2015. He was the chairman of SCRAP between 1971 and 1972. His 50th Anniversary Edition To A High Court: 5 Bold Law Students Change the Law will be revised and updated.
The post The Discomfort of Railroads, Government, & Law Students Fifty Years After SCRAP Triumphed at the High Court first appeared on Attorney at Law Magazine.