On Thursday, the Supreme Court imposed strict new limits on the Clean Water Act. The Court’s decision in Sackett v. EPA is likely to do serious harm to the government’s ability to quell water pollution, including in major waterways such as the Mississippi River and the Chesapeake Bay.
Meanwhile, Justice Clarence Thomas wrote a concurring opinion that would so severely limit Congress’s power to legislate that he might as well have taken several volumes of the United States Code and lit them on fire.
To be clear, a concurring opinion is not the law — it merely reflects the views of the justices who sign onto it. And this particular opinion is unlikely to garner five votes to become law unless the Court’s membership changes drastically. But that does not change the fact that Thomas (and Gorsuch, who joined his opinion) is one of only nine justices, and their views tend to shape the ideas of lawyers and judges throughout the legal system.
Under the approach Thomas lays out in his Sackett concurrence, the federal ban on child labor is unconstitutional. So is the minimum wage, federal laws protecting the right to unionize, bans on workplace discrimination, and nearly all other regulation of the workplace. Thomas’s approach endangers countless laws governing private business, from rules requiring health insurers to cover people with preexisting conditions to the ban on whites-only lunch counters. And even that is underselling just how much law would be snuffed out if Thomas’s approach took hold.
Though Thomas has said similar things in the past, his opinion in Sackett is one of the most nihilistic opinions written by any federal judge in the last nine decades. This opinion is particularly notable, moreover, because it is joined by another justice, Neil Gorsuch. Gorsuch, who was appointed to the Court in 2017, had not previously revealed just how far he is willing to go in sabotaging the United States government.
That means that there are now at least…
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