Wetlands case tops court agenda
When the United States Supreme Court opens its fall term on Monday, some things will be different.
A black woman, Judge Ketanji Brown Jackson, will hear oral arguments for the first time. And the public will be admitted to the hall for the first time since the beginning of 2020.
The content of the first instance of the term, however, will be familiar to many who have followed federal water policy in recent years. The case is a challenge to the definition of “United States waters,” which delineates wetlands that the federal government can regulate under the Clean Water Act.
The case, brought by an Idaho couple, could further restrict the Environmental Protection Agency’s power to regulate environmental protections, just like one of the latest rulings by the conservative majority in the last term limited the agency’s power to regulate greenhouse gases.
A historic day at the United States Supreme Court
Monday will be the first day Jackson will join the ritual of oral arguments in the ornate chamber as one of nine Supreme Court justices. Jackson, a Harvard Law School graduate and former federal judge who grew up in Miami, was sworn in in June following an often contentious Senate confirmation process.
On Friday, she participated in an investiture ceremony, which reflects the stylistic aspects of taking the oath. The investiture, however, is purely symbolic. Jackson has been a member of the tribunal since she was sworn in.
Although the event was only symbolic, President Joe Biden and a handful of White House staffers, along with several members of Congress, including Representative Hank Johnson of Georgia, and the Sens. Amy Klobuchar of Minnesota and Cory Booker of New Jersey, all Democrats, attended the six-minute event.
Booker, who is black, brought tears to Jackson’s eyes at a difficult point in the confirmation hearing when he spoke about the importance of Jackson’s role in history and as a role model for young people. Black.
U.S. Senator Ben Sasse, a Republican from Nebraska who serves on the Judiciary Committee, was the only senator to vote against confirming Jackson to attend Friday’s ceremony. His presence seemed intended to make a point about the need to respect the institutions, even in the event of disagreement in good faith with individuals.
In a statement, Sasse said he disagreed with Jackson’s judicial philosophy, but that their disagreement was respectful and impersonal. He urged members of both parties not to attack the court itself.
“Right now, there’s a lot of sound and fury about whether or not the Supreme Court has lost its legitimacy,” Sasse said in the statement. “It’s a bunk load. The legitimacy of the Court comes from its constitutional role and not from the popularity of its opinions. I’m sure I won’t agree with all of Justice Jackson’s views, but I’m not going to attack the Court’s credibility when we see things differently, and I would like more of my colleagues to take a similar approach. .
During March hearings before the Judiciary Committee, Sasse avoided the most salacious attacks on Jackson launched by other Republicans and lamented the “jackassery” seeking publicity in the chamber.
Polls report that Americans’ opinion of the US Supreme Court has declined
Jackson is unlikely to affect the court’s ideological balance, as she replaced Stephen Breyer, who was in the court’s liberal minority before his retirement.
With three judges appointed by former President Donald Trump, the court’s last term was the most conservative in decades, culminating in a ruling overturning Roe. v. Wade, the landmark 1973 case that guaranteed abortion rights nationwide.
The three liberal justices, Elena Kagan, Sonia Sotomayor and now-retired Breyer, wrote a scathing dissent that the ruling “undermines the legitimacy of the court.”
The Court’s departure from its own precedent in Dobbs “calls into question this Court’s commitment to legal principle”, they wrote. “It makes the Court appear not restrained but aggressive, not modest but greedy. In all these ways, today’s decision is, we fear, aimed at the rule of law.
Americans’ opinions of the court have declined over the past two years, paralleling its shift to the right. A national Marquette Law School poll conducted in September found that 60% of respondents disapproved of the court, while only 40% approved. The results represented a 53-point drop in net preference from the same survey in 2020, when twice as many respondents held favorable views as those with unfavorable views.
Other events also threatened the court’s reputation.
Judge Clarence Thomas did not recuse himself from a case involving the House Jan. 6 committee’s access to presidential records and was the only judge to vote in favor of restricting those records. Records later showed his wife, Virginia “Ginni” Thomas, a Nebraska native, exchanged multiple texts with then-White House chief of staff Mark Meadows, spreading false allegations that the election had been stolen.
Additionally, a draft of the Dobbs decision reversing Roe v. Wade was leaked to the media months before it was published in what several experts called an “unprecedented” breach of court protocol which launched an internal investigation.
New court rules, old problem
Monday will mark the first time since March 2020 that the court will allow the public to attend oral arguments. Masks will be optional.
The court will continue to broadcast live audio of the pleadings, a practice the stilted court has only adopted by limiting attendance during the pandemic.
The first oral arguments presented under the new rules implicate the EPA’s authority under the Clean Water Act to regulate “United States waters.” The 1972 act changed the criteria for what constituted a federally protected waterway away from one that is navigable to “United States waters”.
This definition has changed since the law was passed, especially since the last three presidential administrations have enacted rules to define it.
In 2015, President Barack Obama’s administration released a definition that some, especially Republicans, saw as expanding federal jurisdiction. His successor, Donald Trump, moved to loosen the definition in 2020, but a federal court overturned that decision in 2021.
Last year, under Biden, the EPA and Army Corps of Engineers said they would interpret the phrase in accordance with a pre-2015 definition while they work to update a more permed. A Supreme Court decision will likely come before this rule is finalized.
An Idaho couple, the Sacketts, own a plot of land near Priest Lake in the state’s begging. Their land is within 30 feet of a tributary to the lake. The EPA claimed the parcel fell within its jurisdiction to regulate as a waterway, and the Sacketts disagree.
The Sacketts are among many farmers and other private landowners seeking a reprieve from federal wetland regulations on their property.
A federal appeals court ruled last year in favor of the federal agency, but the Supreme Court’s decision to hear the case could mean it overturns the lower court’s decision.