In a first-rate column today in the Washington Post, E.J. Dionne highlighted a legal conflict between the "humility" of conservative Supreme Court Chief Justice John Roberts, who in a recent speech called for the broadest possible agreement among justices on cases, even if on the narrowest of grounds…and Antonin Scalia, who places great faith in broad rulings based on the "original" meaning of the Constitution, which, curiously enough, always seems to align with his own far-right values.
As Dionne explained:
To propose that court decisions should achieve broad majorities is, in the current circumstance, to tell the court’s conservatives that they have an obligation to temper their own passions and reach out to the liberal minority. To get 7 to 2, or 8 to 1, or 9 to 0 decisions, the court would have to avoid far-reaching declarations congenial to conservative doctrine.
Roberts’ effort is a noble and admirable one, I think, but it ran into a rock named Scalia on its first big test and sank without leaving a trace.
On Monday the Supreme Court announced that it could not reach agreement on a wetlands case that could have either upheld the right of the Federal government to find a "hydrological connection" between wetlands and navigable bodies of water, such as perennial streams and rivers…or could have legally severed that connection, and allowed property owners to develop wetlands properties, regardless of their downstream consequences.
The court divided between the right-wing conservatives and the quasi-liberals, with Anthony Kennedy, a Sacramento native, playing the moderate, and proposing his own new interpretation of the law. In the words of the LATimes:
[Kennedy] said he would require government regulators to show that filling a wetland would have a "significant effect" on the quality of the downstream waters.
He noted that filling a wetland with dirt or sand usually would result in silt flowing downstream.
Kennedy’s decision, combined with the opinion of the four conservative justices, meant there were five votes to send the Rapanos case back to the lower courts.
There a judge will decide whether Rapanos’ fields were indeed protected wetlands, with Kennedy’s opinion as a guide.
Or, "Here’s another fine mess you’ve gotten me into," in the immortal words of Oliver Hardy.
The newspaper noted that most streambeds and even rivers in the West, such as the L.A. River, are dry in the summer, so Scalia’s "originalist" interpretation would have had a completely different effect on the East Coast than on the lands west of the 100th meridian.
But it didn’t point out, as Kennedy did in his opinion, that ruling for the developer Rapanos would have meant choosing sides with a bully and a cheat:
In December 1988, Mr. Rapanos, hoping to construct a shopping center, asked the Michigan Department of Natural Resources to inspect the Salzburg site. A state official informed Rapanos that while the site likely included regulated wetlands, Rapanos could proceed with the project if the wetlands were delineated (that is, identified and preserved) or if a permit were obtained. Pursuing the delineation option, Rapanos hired a wetlands consultant to survey the property. The results evidently displeased Rapanos: Informed that the site included between 48 and 58 acres of wetlands, Rapanos allegedly threatened to "destroy" the consultant unless he eradicated all traces of his report. Rapanos then ordered $350,000-worth of earthmoving and landclearing work that filled in 22 of the 64 wetlands acres on the Salzburg site. He did so without a permit and despite receiving cease-and-desist orders from state officials and the EPA. At the Hines Road and Pine River sites, construction work–again conducted in violation of state and federal compliance orders–altered an additional 17 and 15 wetlands acres, respectively.
Kit Stolz 