When the conservative majority of the Supreme Court so bungles their interpretation of a federal law that they lose Justice Brett Kavanaugh, you know they have truly erred.
This week the Supreme Court significantly narrowed the scope of the Clean Water Act, limiting the types of bodies of water that are included as “wetlands” protected from pollution under that Act. That this is a good day for would-be polluters and a bad day for those worried about the environment is predictable. This is a court that is going to consistently make decisions that embrace a skeptical view of the power of executive agencies to protect the environment.
This is a court that is going to consistently make decisions that embrace a skeptical view of the power of executive agencies to protect the environment.
But the court’s ruling isn’t merely practically pernicious for those who care about the environment; it is legally wrong. Judges, as the conservative court is fond of reminding us, are jurists, not lawmakers. Judges should clarify what words and phrases in laws mean, not reinvent the meaning of those words and phrases to accomplish their policy goals. And yet, as Kavanaugh demonstrated in his concurring opinion, that is what the court did this week.
It is unusual for Kavanaugh to break with his conservative colleagues, and the fact that he did so here shows us how truly baseless the court’s reasoning is. Kavanaugh’s concurring opinion explains why the court’s interpretation of the text of the Clean Water Act is fundamentally unmoored from the text itself. To use his words, ”the Court is imposing a restriction nowhere to be found in the text.” Justice Elena Kagan frankly said it better when, in her concurring opinion, she noted “the majority shelves the usual rules of interpretation — reading the text, determining what the words used there mean, and applying that ordinary understanding concurring in judgment even if it conflicts with judges’ policy…
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