Jan 112012

Ed. note: There's more coming on this, including audio from the Supreme Court press conference and the GU Law Center forum. Below is the video clip posted by Pacific Legal Foundation on YouTube of the post-argument press conference. It ends before reporters began asking questions.

When you finally get around to covering a Monday story on Wednesday, you have to come up with a new hook. Fortunately, there's one staring me in the face (and reliably recorded on my beat-up Olympus--at least it better be).

At a Georgetown University Law Center forum a few hours after the arguments in Sackett v. EPA had ended, Professors Richard Lazarus of Harvard and Richard Frank of UC-Davis confidently predicted an overwhelming victory for Chantell and Michael Sackett. (To be fair, Frank has already shared his views on Legal Planet, so my hook isn't unique. But unlike Frank, I'm sticking his prediction a bit higher up in the narrative.)

"This case makes me uncomfortable," Frank started off, before launching into his analysis of the case and the arguments conducted by Pacific Legal Foundation attorney Damien Schiff and Deputy Solicitor General Malcolm Stewart -- and, of course, his assessment of the attitudes expressed by the eight Supreme Court justices who questioned the lawyers.

He praised Schiff, both for "a very powerful brief; he told a story" and for his performance before the high court, the first time the thirtysomething lawyer has appeared on the biggest legal stage in the U.S.

"The Sacketts are likely to prevail by 7-2 or 8-1," Frank said. He said it's possible that Justice Ruth Bader Ginsburg could be the only holdout, but also that she might join a unanimous court in order to have some say over the content of the opinion.

Lazarus, an acknowledged Supreme Court expert who has participated in 40 cases before the court, agreed with Frank's assessment and said Chief Justice John Roberts might very well assign the opinion to Ginsburg, because he likes to assign liberals to 9-0 decisions. That might provide the government with a "soft landing."

"He's going to have an institutional bias to giving this to a liberal justice," Lazarus said.

But if for some reason the opinion goes to Justice Antonin Scalia, watch out, Lazarus said. In that case, there could be "a lot of dumping on the Clean Water Act and the Corps of Engineers."

Lazarus called the eventual Supreme Court decision "potentially unanimous" and said he did not think the verdict would be closer than 8-1.

"It's just a question of how sweeping the ruling is," Lazarus said.

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