The Supreme Court ruled 5-4 Monday that regulators may have misinterpreted the federal Clean Water Act in refusing to allow two Michigan property owners to build a shopping mall and condos on wetlands they own.Chief Justice John Roberts writes for a plurality, with Justice Kennedy providing the 5th vote in a concurring opinion. I haven't got the text yet, but Roberts slams Kennedy for leaving "lower courts and regulated entities ... to feel their way on a case-by-case basis." [See the update below!]
The court's four most conservative members wanted a more sweeping ruling, clearing the way for development of land unless it was directly connected to waterways.It takes nerve to hold the two sides of the Court in equipoise like that, but it would also take nerve to commit to a clear rule. It takes nerve to relegate everyone to so much uncertainty and litigation, but it would also take nerve to determine the outcome in so many cases beyond the case at hand. Poor Justice Kennedy. I can't imagine how he feels about his role. And now it seems that it's the next change on the Court that will produce the... deluge.
The court's four most liberal members said that such a ruling would reject three decades of practice by the Army Corps of Engineers and threaten the environment.
UPDATE: Chief Justice Roberts, concurring, faults the Army Corps of Engineers for failing to come up with rules governing the scope of its power after the Court rejected its grandiose view in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001) (SWANCC):
Lower courts and regulated entities will now have to feel their way on a case-by-case basis. This situation is certainly not unprecedented. See Grutter v. Bollinger, 539 U. S. 306, 325 (2003) (discussing Marks v. United States, 430 U. S. 188 (1977) ). What is unusual in this instance, perhaps, is how readily the situation could have been avoided.That's an interesting citation to the Michigan affirmative action case, Grutter. Note how elegantly Roberts doesn't quite criticize Grutter. He doesn't even criticize Kennedy for leaving the law in a condition of fuzziness. My original post says "Roberts slams Kennedy," which is an incorrect inference I made reading Holland's report. Roberts doesn't even mention Kennedy. He slams the Army Corps of Engineers. And he doesn't complain about fuzzy legal standards generally. He's focused on the failure by the Corps to provide the clear rules that would have solved the problem.
Justice Scalia who wrote the plurality opinion, joined by Roberts, Thomas, and Alito, did go after Kennedy, but not to chastise him for leaving the lower courts to struggle through unclarity. His opinion is concentrated on proper textual analysis of the statute.
So, I really need to reframe this post. I was too eager to perceive Kennedy setting himself apart from the Roberts-Scalia-Thomas-Alito group. I think this opinion would have been written differently by the Rehnquist Court, and that Roberts is having a moderating effect.
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And now it seems that it's the next change on the Court that will produce the... deluge.
Doesn't this assume something about the next person who will have to be replaced?
"such a ruling would reject three decades of practice by the Army Corps of Engineers and threaten the environment." Forgive an ignorant foreigner, but what on earth have those two considerations got to do with what the Constitution says?
Dearieme, you obviously haven't heard much about stare decisis, aka The Error With Tenure doctrine.
And Ann, while it takes nerve to hold the Court in equipoise, it takes no nerve at all to be indecisive. Some people are not the decider, they don't decide things.
In light of Part VII of the plurality opinion, we can say that the seeming comity on the court doesn't run deep. For example:
"Only by ignoring the text of the statute and by assuming that the phrase of SWANCC (“significant nexus”) can properly be interpreted in isolation from that textdoes Justice Kennedy reach the conclusion he has arrived at. Instead of limiting its meaning by reference to the text it was applying, he purports to do so by reference to what he calls the “purpose” of the statute . . . This is the familiar tactic of substituting the purpose of the statute for its text, freeing the Court to write a different statute that achieves the same purpose...
At least Justice Stevens can blame his implausible reading of the statute upon the Corps. His error consists of giving that agency more deference than reason permits. Justice Kennedy, however, has devised his new statute all on his own. It purports to be, not a grudging acceptance of an agency’s close-to-the-edge expansion of its own powers, but rather the most reasonable interpretation of the law. It is far from that, unless whatever affects waters is waters."
Take that, Tony!
I'd add that the Chief Justice's remarks in his concurrence ("[i]t is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act . . . Lower courts and regulated entities will now have to feel their way on a case-by-case basis") could be read to support my previously-expressed view that the import of his Georgetown speech has been misunderstood, and that our Fearless Leader's primary concern is not to obtain narrow rulings, but to promote stability in the law by handing down opinions that command as many votes as possible, in general, and avoiding these messy pluralities, in particular.
By the way, can we just point out: two very good and fairly broad rulings from Justice Scalia, both of which are very likely to have been dissenting opinions were it not for the replacement of O'Connor with Kennedy. One more appointment to exorcise Justice Kennedy's entirley undue influence, and then we're really in business.
Sadly, Kennedy is the same age as Scalia. Perhaps Tony could be appointed to an ambassadorship or something like that.
Damnit, I meant replacement of O'Connor with Alito in my previous comment.
"I am glad that predictions that Kennedy would align himself with Roberts did not come to fruition, at least not yet. It is frightening to think what direction the law could take were it not for Kennedy. Of course, it is "frightening" if you do not subscribe to Scalia's views in the first place."
Yes, if it weren't for Kennedy, as the majority points out, the court would be stuck with the mundane task of interpreting statutes, rather than rewriting them. See maj. op. at n.4, n.9, and generally, Part VII ("Justice Kennedy’s opinion concludes that our reading of the Act 'is inconsistent with its text, structure, and purpose.' His own opinion, however, leaves the Act’s 'text' and 'structure' virtually unaddressed, and rests its case upon an interpretation of the phrase 'significant nexus' which appears in one of our opinions . . . Only by ignoring the text of the statute and by assuming that the phrase [significant nexus] . . . can properly be interpreted in isolation from that text does Justice Kennedy reach the conclusion he has arrived at") (internal citations ommitted). What a frightening - nay, horrifying - prospect that must be. It does the court's legitimacy no good to see its pronouncements resting so obviously and squarely on the idiosyncratic views on one member, something that is as true now as it was when that tipping point was Justice O'Connor.
"My prediction is that the tribunals will be struck down in a 5-4 vote with Kennedy providing the 5th vote for the moderates."
The moderates? How adorable! Pray tell, who are "the moderates"? Allow me to venture a guess: would "the moderates" be Justices Stevens, Souter, Ginsburg and Breyer?
Mark,
The fact that you characterize the court's four liberal Justices as "moderates", with the presumable implication being that the four conservative justices are "immoderate" or "extreme" really makes it fairly difficult to take seriously your "analysis" of what the majority did and did not hold.
You're right, you will never convince me, but I am curious to know precisely which "two limitations which are nowhere in the text" you think the majority read into the act -- unless, of course, your argument is that the text of the act does not and should not limit its application, in which case, save your breath.
Why is it up to the justices to provide clarity?
If the congress has not seen fit to change 30 years of Corp practice, then is not congress satisfied with the Corps interpretation of the law?
And it takes nerve for a justice to stick to what courts do best--decide individual cases on their merits--and resist the ideological cries for broad rules that provide predictability.
Mark,
"The fact that you think that 4 moderate Justices are liberals, speaks volumes abouit how far to the right the country has moved since 1980s."
Such transparent parsing gets you very little mileage. If you move your point of reference far enough to the left, of course Justice Breyer is a "moderate"; are any of the present liberal justices as liberal as Bill Brennan? Probably not, but that does not make them moderate. For example, Justices Breyer and Stevens think that a prisoner on death row should be permitted to commute his death sentence to life imprisonment by running out the clock; see Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, dissenting from denial of cert); Elledge v. Florida, 525 U.S. 944 (1998) (Breyer, dissenting from denial of cert); Knight v. Florida, 528 U.S. 990 (1999) (Breyer, dissenting from denial of cert)is this a "moderate" view of the eighth amendment? Is it a "moderate" view of penological theory? No, it is a liberal view.
(And, for the record, by definition, defining one group as "moderate" makes all others outside that group immoderate).
You clearly think that the court should make up for bad statutory drafting. I disagree. A statute means what it says; it contains and reaches all - but only - what can reasonably be inferred from its terms. Your comments seem to recoil from - shock! Horror! - the plurality's focus on the actual words of the statute, almost as if you think that something other than the text governs the interpretation of a statute. Moreover, you blame the absurd result of taking the language at face value on the court; I blame it on the drafters of the CWA. For this reason, an absurd result is not necessarily a wrong result, and it is fully within the power of Congress to overrule this result as it sees fit, should it wish to change the language, as it previously did when irked by a previous contentious Scalia opinion for the court, in Smith.
Calling for a broad rule is ideological because, as others have explained, it calls for value judgments our system leaves to the legislature, and whatever broad rule the court imposes will be to make an ideological judgment that is better for the legislature to make. Or at least that's what I once thought conservatives believed.
"Calling for a broad rule is ideological because, as others have explained, it calls for value judgments our system leaves to the legislature, and whatever broad rule the court imposes will be to make an ideological judgment that is better for the legislature to make."
That very much depends on what the rule is, doesn't it? How about a rule that says that evidence obtained in violation of the fourth amendment is inadmissable in court? Is that judicial activism, in your view?
The COE is easily the most difficult agency in the federal government to work with. Doesn't matter where you sit. As for "wetlands" take a few hours and read up on the history, what a mess. Hopefully you're not some poor landowner who accidently created a wetlands and has to "wade" into that nightmare. Talk about "absurd"
I certainly did not mischaracterize Stevens' and Breyer's views; they think that being on death row for twenty years is unconstitutional. That is ridiculous in and of itself, whatever the cause of the extended incarceration, but unless you seriously want to contend that there is a reason that it takes twenty years plus to execute someone in this country other than continued and repeated legal process by the condemned, then yes, those Justices' arguments are precisely as I characterized them, and in either event, that will be the practical effect.
They are the Court's liberal wing. If your theory holds, in a decade, Justice Scalia will be the court's moderate. So either you're wrong, or you've won a quite phyrric victory.
All four liberal Justices have voted to uphold death sentences, but they also believe that the content of the Eighth Amendment evolves through time, which makes the question of whether they believe the death penalty is unconstitutional today an entirely separate question from what they will believe tommorow. Even if their results were not liberal - and they certainly are - their judicial philosophy certainly is.
I'm not sure how you want me to disprove your "thesis" - you can disprove it yourself by browsing approximately 490 U.S. through present.
Lastly, needless to say, I entirely disagree that the job of the courts is to make up for bad statutory drafting, and I disagree even more stringently that the statute's "intention" (even assuming a freestanding inanimate object can have "intentions"; I presume you mean "purpose", and even that is dicy). The job of a court of law is to say how the law applies to a given case or controversy (that is, to say what the law is, not what it should be). The act of changing the meaning of a statute is, by definition, further legislation, a power specifically withheld from the statute. Nor, obviously, do I accept this renders the process mechanical; the job of a judge will always involve a certain degree of discretion, which is precisely why it out to be kept out of the hands of those who think their discretion extends to construing the purpose of the legislation and applying it over its actual text - i.e., re-writing it.
Help!
I have a technical question: I haven't read anythiing more specific than what was presented on the radio and in this article.
Will the issue for the lower courts be what "directly connected" to a waterways means? Or who gets to interpret that? Or how broad an interpretation can be?
I mean, nothing in this ruling is arguing that the government has no right to regulate wetlands unconnected to waterways, is it?
Is the issue whether their are limits to what the government can consider "connected to a navigable waterway".
This isn't my area of expertise, so I would appreciate any clear, friendly explanation of what the legal issue will be.
All over Wisconsin, there are people who want to fill in wetlands.
6:01 PM, June 19, 2006
OK, I have been reading more about the case. Any idea of what a "significant nexus" is? Are there examples of this phrase being used in other cases?
I think some folks are dismissive of the idea of ditches being part of a navigable system. But don't ditches often represent a previously destroyed wetland?
What kind of expertise is appropriate to make these kinds of decisions?
As long as I am asking, does anyone know of a good one-volume book on environmental regulation and the Supreme Court?
"There are limits to clarity; the only way to make clear pea soup is to leave out the peas."
Yeah, and peas or no, that bowl of soup is a wetland, under the jurisdiction of the Army Corps of Engineers.
Mark,
As long as it's your brand of justice that they're dishing out, right?
I presume that Scalia's and Thomas' brand of justice is quite different from Breyer's and Stevens' and from yours as well, and probably from mine.
If you're ok with guys like Brennan and Black and Douglas imposing their justice on the nation, then you have to accept it when Nino and Clarence do it.
That is why an objectivist vision of the law is preferable, to the degree that it is most possible, because it's the same for everyone and it doesn;t deoend on who is on the court.
Obviously the nine will never agree, but I'd musch prefer that htey are doing their best to say what the law is rather then as a mechanism for a justice that may include unlimited partial birth abortion, race-based affirmative action, letting criminals go free on technicalities, or whatever the conservative versions of those are.
As for this decision, it once again emphasizes that Kennedy controls the Court. Mark and his ilk don't have anything to worry about until there's another vacancy. If Scalia, Thomas, Roberts and Alito can get a 5th to join the band, then watch out.
"If Scalia, Thomas, Roberts and Alito can get a 5th to join the band, then watch out."
Possibly, but who is going to appoint a 5th? That's a serious question. If Kennedy gets hit by a bus tomorrow W's choice would probably by another Kennedy (no matter how they are packaged).
The day RvW is overturned is the day that evangelical support of the Republicans is most in danger (unless the republicans have a new bogeyman they can simultaneously get them worked up about while doing very little of substance, see ammendment, federal, marriage). And, a 5th conservative is going to make those necessary moderate swing voters very nervous.
The smart option is a stealth candidate who looks conservative on paper but votes a moderate Kennedy-esque line. Then the republicans can say they tried but were outfoxed by those evil, evil liberals, the base may or may not be fooled but what, they're going to vote democrat? (ha!) Just wait for that next appointment (repeat as needed).
Michael,
To some extent, Dahlia Lithwick has pre-empted your comment regarding appointing nominees who are soft (arguing that "John Roberts was the last wink, or coded nominee, the [] right will ever accept").
I think you'd probably also be interested in Jeffrey Rosen's article in the present edition of the Atlantic magazine, wherein Rosen reaches the same conclusion that you do: overturning Roe would do nothing other than create a backlash that would destroy the GOP and keep abortion legal in four fifths of the states. There are many problems with Rosen's article, and I could dissect it at some length, but probably the thing that is most self-evidently troubling about it - and I don't know if this applies to you too or not - is something I touched on last fall: if overturning Roe will not end abortion, and will, in fact, lead as inexorably to a GOP crackup as Rosen believes, why in the world is committed liberal and abortion rights proponent like Rosen writing big splashy stories in the Atlantic trying to prevent this from happening? Indeed, if Rosen honestly believes his argument, it would seem to me that the best strategy for someone of his views would be to quietly and assiduously do everything possible to force the issue - defeat the recall on the SD law, put a fifth vote against Roe on the court, stir liberally, and -- presto! Permanent liberal majority, according to Jeff. The result that Rosen forecasts simply doesn't match up to the breathless "the germans are coming, the germans are coming" bell-ringing tone in which his article is written. Rosen writes an article which someone of his views would, I would think, be a superb result, and yet he sounds like he is trying to desparately snatch defeat from the jaws of imminent victory. Something's not right here: beware of greeks bearing gifts.
The result that Rosen forecasts simply doesn't match up to the breathless "the germans are coming, the germans are coming" bell-ringing tone in which his article is written. Rosen writes an article which someone of his views would, I would think, be a superb result, and yet he sounds like he is trying to desparately snatch defeat from the jaws of imminent victory. Something's not right here: beware of greeks bearing gifts.
Agreed, I’ve always taken the “once Roe is overturned, the GOP will self-destruct” line as wishful thinking on the part of people who have been predicting a GOP crack-up since Ronald Reagan was declared “too conservative” to be elected about thirty years ago.
"Agreed, I’ve always taken the “once Roe is overturned, the GOP will self-destruct” line as wishful thinking "
Who said self-destruct? I said it would defuse a significant part of the base (as in make them less likely to vote as much period). Once their big issue is defused, they're less a force. The secret to getting a secure voting block is looking like you're on their side and tryng to do something, but not actually delivering very much (see Republicans and evangelicals, Democrats and Blacks, etc, it's a bipartisan tactic).
verification word: looik, Dutch slang for 'outhouse'.
"Who said self-destruct? I said it would defuse a significant part of the base (as in make them less likely to vote as much period). Once their big issue is defused, they're less a force."
But that is a bizarrely counterintuitive conclusion; those who oppose Roe-Casey and argue for their overturning - whether those persons support abortion rights or oppose them - they are essentially militating for the return of the issue to the democratic arena. Overturning Roe-Casey is a necessary pre-requisite to sorting out the abortion mess, but it is not a self-contained solution. I would suggest that you are entirely mistaken: on the contrary, while the venue might change (from Presidential elections to statehouses), overturning Roe is likely to drastically increase the democratic engagement of those with strong views one way or another on abortion, since suddenly, their votes will matter, and the views of state lawmakers will matter. Rosen is certainly correct in this regard: when Roe is overturned, it will be like detonating a bomb in the sedate byways of state legislatures and the electoral politics surrounding them. On every level, I would welcome such an instauration of the relative import of state legislatures.
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