JUSTICES CONSIDER CLEAN WATER ACT CASE OUT OF HAWAII | Yo Ho Yo Ho A Pirate’s Life Not For SCOTUS

November 6, 2019

Justices this morning heard arguments in a case out of Hawaii that asks them to consider a central part of the Clean Water Act. A wastewater treatment plant in Maui injects treated wastewater deep underground, but a University of Hawaii geologist found that much of it ended up in the Pacific Ocean, resulting in damage to a coral reef. David Douglas with NBC News explains, “The chief tenet of the Clean Water Act requires polluters to get a federal permit for pollution that enters ‘navigable’ water, such as a river, lake or in this case the Pacific Ocean. The County of Maui has argued the act does not apply because the wastewater isn’t flowing into the Pacific but rather groundwater beneath the plant.”

Initial reports of this morning’s arguments indicate that justices weren’t buying Maui’s argument. The four liberal justices seemed squarely on the side of environmental groups, while the five conservative justices appeared split on the matter. However, CHIEF JUSTICE ROBERTS and JUSTICE KAVANAUGH both showed concern for creating a loophole in the landmark regulation.

The Supreme Court yesterday heard a piracy case involving, well, pirates. Jess Bravin with The Wall Street Journal explains, “Blackbeard’s flagship, Queen Anne’s Revenge, ran aground near Beaufort, N.C., in 1718, eventually giving rise to a piracy case the Supreme Court heard Tuesday—but the issue is about copyright rather than rum, parrots or buried treasure.” A documentarian hired by the state of North Carolina claims the state infringed his copyright when images he shot of an ongoing excavation of the Revenge ship were posted online. Richard Wolf with USA Today notes the justices appeared inclined to rule that North Carolina’s actions amount to piracy, with justices like STEPHEN BREYER and BRETT KAVANAUGH commenting on the possible implications of this case. Breyer said, as an example, the copyright infringement could lead to states showing popular films on their own streaming services at a discounted rate. Kavanaugh said, “It could be rampant, states ripping off copyright holders.”

“In a matter of days, PRESIDENT TRUMP will ask the Supreme Court to rule on his bold claim that he is absolutely immune from criminal investigation while he remains in office. If the court agrees to hear the case, its decision is likely to produce a major statement on the limits of presidential power — and to test the independence of the court itself.” That’s Adam Liptak with The New York Times reporting on the president asking SCOTUS to make a “momentous choice” that could amount to a “once-in-a-generation reckoning with whether and how presidents can be investigated.”

“Break out the umpire trope one more time: If CHIEF JUSTICE JOHN G. ROBERTS JR. is called upon to preside over a Senate impeachment trial of PRESIDENT TRUMP, it will be the most high-profile and likely unwelcome test of his skills as neutral arbiter.” Robert Barnes and Seung Min Kim with The Washington Post note just how difficult of a position the chief justice is in with the impeachment of Donald Trump. “Trump’s impeachment proceedings would be the first trial over which Roberts has ever presided. It provides the potential for a confrontation with a president who has already antagonized him, even as the chief justice has tried to distance himself and the court from partisan politics.” 

In her latest, Dahlia Lithwick with Slate considers whether CHIEF JUSTICE ROBERTS will bail out DONALD TRUMP. Her suggestion? Don’t bet on it. “There’s every reason to think that Roberts—conservative, Republican, and lifelong believer in expansive executive power—is not going to want history to remember him as the guy who emptied the ashtrays of a carnival barker president. As he did in the census appeal last summer, Roberts will carry water for this president and this Justice Department, but only so far—and not at the cost of personal embarrassment or the degradation of the court. That will make his next couple of moves the most interesting show in Washington.”