As Fractious as Ever

Forget all that talk about the Supreme Court becoming all warm and fuzzy under the direction of the new Chief Justice, John Roberts. Monday morning's big environmental ruling reminds us that the Justices are just as fractious now as they have been in the past when it comes to the truly contentious issues of our day. Chief Justice Roberts may be a dazzlingly smart and politically-savvy man. But he's still only one vote out of nine.

The Court's four horsemen of conservatism, Justices Scalia, Thomas, Alito and the Chief Justice, voted in a case out of Michigan for a narrow interpretation of the phrase "waters of the United States" in a way that helps owners and developers who want to build on wetlands. The Court's more liberal lions and lioness, Justices Breyer, Souter, Ginsburg and Stevens, voted for a broader interpretation of the Clean Water Act. Justice Anthony Kennedy, once again, was the man in the middle, the famous "swing" vote, and his concurring opinion essentially telling all eight otherJustices (and all the lower court judges) that they didn't apply the right legal test.

Justice Kennedy's ruling forces the case back down to the lower courts for a fuller evaluation of the issues and the facts and whether the wetlands that generated the lawsuit have a "significant nexus" to navigable waters. in all there were five opinions written for this single case, including a whiny one from the Chief Justice in which he lamented the lost opportunity to present lower courts with more valuable guidance on how to handle these sorts of tricky questions.

Whether the Court ultimately got it right or wrong doesn't matter (and we won't know the answer anyway until the lower courts chew on this ruling for a while). What matters is that the Roberts Court has shown itself capable of being just as chaotic and scattered and polemic as virtually every one of its predecessors. The more things change the more they stay the same.

By Andrew Cohen |  June 19, 2006; 2:30 PM ET
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This issue has long been festering. The Army Corps of Engineers has extended its jurisdiction. States and their municipalities have been riding the coattails and sometimes applying more limiting rules. Meantime, there is inconsistency of enforcement. I would like to hear from practitioners talk about concrete situations they have faced. Perhaps there is a laudable goal of preserving groundwater for the common good. But what might then happen to development and growth? (In today's Metro section there is an article on a proposal for a 15,000 home development in a District suburb: Leavittown on steroids.) The Supreme Court provides very little guidance. So it goes back to the lower court, several years pass, SCOTUS denies Cert on a further appeal. Meantime, there may be more and more inconsistent results in the field.

Posted by: Shag from Brookline | June 20, 2006 07:16 AM

Thanks for the post, Shag, and for all the "good" advice on what to bring back from Montreal! No, seriously, thanks for reading so often and for providing good insight.

Posted by: Andrew Cohen | June 20, 2006 07:51 AM

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