Supreme Court Rules On Clean Water Act | Justices Make It Easier For Some Deportations | Why Everyone Is Mad At Elena Kagan
April 23, 2020
HAPPY EARTH DAY INDEED
|A day after the 50th anniversary of Earth Day, the Supreme Court handed down a decision today in the most high-profile environmental dispute of the term. SCOTUS sided with environmentalists in a case out of Hawaii, with justices rejecting arguments from the Trump administration regarding a “loophole” in the Clean Water Act. The ruling was 6-3 with CHIEF JUSTICE ROBERTS and JUSTICE KAVANAUGH joining their liberal colleagues. The majority ruled that the Clean Water Act forbids polluters from spewing waste into navigable waters like oceans and streams without a permit, even if the pollution indirectly travels through groundwater. The Trump administration had argued that the law didn’t apply to pollution that traveled through groundwater, but as JUSTICE BREYER wrote for the court’s opinion, “We do not see how Congress could have intended to create such a large and obvious loophole in one of the key regulatory innovations of the Clean Water Act.”
ANOTHA ONE
|The Supreme Court today still gave the Trump administration a win today when it handed down a ruling making it easier for federal authorities to deport certain immigrants who have committed crimes. Justices ruled 5-4 — split along ideological lines — to uphold a lower court decision that found a legal permanent resident from Jamaica ineligible to have his deportation canceled under a U.S. law that lets some longtime legal residents avoid expulsion. Andrew Chung with Reuters reports.
HOW MANY STRIKES UNTIL YOU'RE OUT?
|“The U.S. Supreme Court is no stranger to controversy, but it still gets higher marks in public opinion polls than the other branches of government. Now though, for the first time in memory, the court is not just split along ideological lines, but along political lines as well: All the conservatives are Republican appointees, all the liberals Democratic appointees. That division could put the court in the crosshairs of public opinion if it is forced to make decisions that affect the 2020 election.” That’s Nina Totenberg with NPR reporting on how the divisions between justices could impact the upcoming election, and how the court’s recent ruling on Wisconsin’s primary election “scuffed up” the supposed notion that justices are “fair-minded legal umpires.”
YOU NEED TO CALM DOWN
|“Everyone is mad at ELENA KAGAN…but there’s a good reason she keeps siding with her conservative colleagues.” That’s the head and sub-head of a new piece from Mark Joseph Stern with Slate covering the reaction to Justice Kagan joining JUSTICE ALITO in contesting the Supreme Court’s 6–3 decision striking down split verdicts. Stern writes, “Kagan’s vote in Ramos really shouldn’t have come as a surprise: The justice crosses ideological lines in divided decisions more frequently than any of her liberal colleagues do. She’s also a pragmatist with a fierce commitment to precedent who will follow her principles even when they lead to an outcome she dislikes. Kagan is no closet conservative. She is playing the long game in two related ways: establishing herself as the court’s fiercest defender of precedent and sacrificing ideological purity in favor of compromise with her conservative colleagues. But that is no guarantee that she will prevail, or that any of her compromises will actually pay off.”
SCOTUS IN CRISIS
|Linda Greenhouse with The New York Times uses her column this week to also weigh in on the Supreme Court ruling that the Constitution requires juror unanimity for a felony conviction in state court. She suggests, “This decision, Ramos v. Louisiana, is in fact one of the most fascinating Supreme Court products I’ve seen in a long time, and one of the most revealing. Below the surface of its 6-to-3 outcome lies a maelstrom of clashing agendas having little to do with the question ostensibly at hand and a great deal to do with the court’s future. Peek under the hood and see a Supreme Court in crisis.”
SCOTUS VIEWS
The Supreme Court Takes a Small Step in the Direction of Judicial Independence
Slate“On Monday, the United States Supreme Court did something it had not done for nearly a decade: It denied a motion by the solicitor general to participate in oral argument in a case to which the federal government is not a party. It shouldn’t wait 10 years to do so again.”
Pay Attention. The Supreme Court Is Talking About Abortion.
Bloomberg“It was easy to miss in the middle of our Covid-19 madness — but this week, the Supreme Court issued its most interesting decision of its current term so far. At issue was whether it’s constitutional for a state to allow for criminal conviction on a 10-2 jury verdict instead of requiring unanimity. But that wasn’t what made the case interesting.”
The Supreme Court Is Split On How To Talk About Race
Slate“In a deeply fractured opinion, the Supreme Court held on Monday that states must rely on unanimous juries to obtain criminal convictions. (Oregon and Louisiana had previously allowed nonunanimous juries to convict individuals.) The opinion reveals different divisions among the justices, including about when to adhere to the court’s prior opinions. But perhaps the most revealing division was about how and when to talk about racial bias in law.”
Justice Alito’s Jurisprudence Of White Racial Innocence
Vox“As the court’s lead opinion pointed out, non-unanimous juries are a practice rooted in white supremacy. One justice took umbrage with that invocation of racism: Justice Samuel Alito. His dissent was the latest in a string of opinions bristling at the idea that racism still shapes many policymakers’ decisions today, and that the legacy of past racism still affects people of color.”
OTHER NEWS
Former Gibson Dunn Associate Will Make His SCOTUS Debut—From Oklahoma
The National Law Journal“Mithun Mansinghani, solicitor general for Oklahoma, is doing the usual prep work, participating in moot courts hosted by the National Association of Attorneys General and the Georgetown Law Supreme Court Institute, among others—all by telephone.”
What’s Behind The Fight Over Wisconsin’s Primary? The Supreme Court’s Gerrymandering Ruling.
The Washington Post“We agree that a Supreme Court decision led to this situation, but not the decision most are discussing. Our research suggests that the real culprit is the Supreme Court’s 2018 political gerrymandering decision in Rucho v. Common Cause. In that case, the court could have — yet failed to — curb the type of extreme partisanship that led to what happened in Wisconsin. Rucho specifically addressed partisan gerrymandering cases out of North Carolina and Maryland. But in a case decided the year before, the court overturned on technical grounds a federal-district court’s decision that struck down Wisconsin’s state legislative redistricting plan, which had been enacted by the Republican-controlled state legislature.”