By Glenn Sugameli, Staff Attorney, Defenders of Wildlife's Judging the Environment
"Conservatives' court-packing ploy," an op-ed by Professor William Marshall, explained how Republicans'
"judicial activism" mantra has been inordinately effective in shaping the debate over judicial nominations. It has allowed them to push through deeply conservative nominees [and] changed the course of American jurisprudence from one based on advancing principles of equality and liberty to one centered on protecting wealth and privilege. The replacement of Justice Stevens stands as an opportunity for Obama to begin the process of returning our understanding of the Constitution to its essential moorings.
E.J. Dionne Jr.'s Washington Post column described how "the conservative intellectual offensive" has transformed
our discussion of the judiciary. That is why the coming clash over President Obama's next Supreme Court nominee ... must be the beginning of a long-term effort to expose how radically conservatives have altered our understanding of what the Supreme Court does and how it does it. Above all, it should become clear that the danger of judicial activism now comes from the right, not the left. It is conservatives, not liberals, who are using the courts to overturn the decisions made by democratically elected bodies ....
Accounts of right-wing judicial activism have focused on the Roberts' Court's opinions, and properly so. For example, my April 13th ACSblog guest post explained how laws that protect people and the environment are "threatened by activist Supreme Court Justices with agendas that result in plurality and bare majority opinions that are overly broad, unwarranted, and ignore or overturn established precedent."
In a series of Senate Judiciary Committee hearings, Chairman Patrick Leahy (D-Vt.) examined Court opinions that limited access to courts and laws safeguarding against workplace discrimination, pollution and corporate misconduct, and threats to health, safety, jobs, and retirement.
Many of the same opinions were the subject of recent reports by The Alliance for Justice ("Unprecedented Injustice: The Political Agenda of the Roberts Court") and People for the American Way ("The Rise of the Corporate Court: How the Supreme Court is Putting Business First)."
These and other opinions result from prior "certiorari" decisions whether or not to decide a case, as the Court controls its docket. Supreme Court Rule 10 provides: "Review on a writ of certiorari is not a matter of right, but of judicial discretion [and] will be granted only for compelling reasons."
Thus, understanding how the activist Court has undermined laws that protect ordinary Americans requires that attention must be paid to one-sided decisions whether or not to review environmental and other cases.
Professor Richard Lazarus has described how the Court "almost never grants review at the request of environmental groups .... [W]hen review is granted, it is almost always because a business is complaining .... The Court's jurisdictional grants are strikingly skewed in this respect, much more so than in any other area of law."
Today's oral argument in Monsanto Co. v. Geerston Seed Farms is the latest example. The Court granted Monsanto's petition to hear the case even though the Solicitor General opposed review "because the court of appeals itself set forth the correct legal standard and its decision does not squarely conflict with any decision of this Court or of any other court of appeals."
Normally, the Court relies heavily on advice from "The Tenth Justice" (the Solicitor General) on whether or not to grant review of a lower court decision. This is especially true when a federal party that lost the case not only does not petition for review, but files a brief in opposition to an industry intervenor request.
The Court's stunning 5-0, worst-ever record of anti-environmental rulings last Term resulted from this anti-environmental, pro-polluter trend on petitions for review. Even President George W. Bush's Solicitors General Paul Clement and Gregory Garre opposed review in three of those cases.
Clement filed briefs for the losing federal agency opposing industry intervenor petitions in both Clean Water Act cases. In Entergy Corp. v. Riverkeeper, Inc., the Court reviewed and reversed an issue in then-Judge Sotomayor's Second Circuit opinion even though there was no conflict with other Circuits and the opinion's impact "was not yet clear." There was also no circuit split in Coeur Alaska, and it was "unclear how important the court's decision will prove to be." In Burlington Northern, Garre stated: "The decision of the court of appeals is correct, does not conflict with any decision of this Court, and does not create a conflict among the courts of appeals."
My last ACSblog guest post explained how the anti-Clean Water Act "‘revisionist' plurality opinion in the 2006 Rapanos case displayed ‘antagonism to environmentalism,' in the words of the four dissenting Justices." The Roberts Court compounded this problem by denying Bush Solicitor General Garre's McWane petition for review even though, unlike the granted anti-environmental petitions, it met Rule 10's objective, traditional review criteria. Garre explained how, since Rapanos' "highly fractured 4-1-4 decision ... courts of appeals have struggled to identify the controlling rule of law .... The Eleventh Circuit's decision in this case creates an acknowledged circuit conflict on this seminal issue[,] misinterprets Rapanos and this Court's precedents governing how to interpret fractured decisions; creates "bizarre outcome[s]," ... will seriously impede enforcement of the CWA; and presents an issue of exceptional importance both to the government and to the regulated community."
[Image via hedonaut.]