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From Cornell Law School's Legal Information Institute site (HTML and PDF both) (6/19/06)
Well, it's 5-4 for Rapanos in the Supreme Court, as Roberts joins Scalia, Thomas and Alito, with Kennedy writing a separate concurrence (as did Roberts). So I'll eat some crow, as I had said 7-2 for the government. Ah, the perils of prognostication. Kennedy's concurrence, however, is key. A careful reading of his analysis and of the entire opinion will be necessary before any predictions about the future of wetlands protection can be made. Both cases, Rapanos and Carabell, were remanded to the Sixth Circuit. So, watch this space.
One last prediction, however (I can't resist). Some in Congress will fulminate and pontificate, but they will not legislate. -- Steve Davies, editor
I didn't get that impression about Roberts, nor did many other observers who were there. Despite some of the bravado shown by Rapanos lawyer M. Reed Hopper and allies afterwards,the general view among most observers is that Rapanos's position is so extreme it cannot be embraced by a majority of the Supreme Court. The only question is, how will it happen? (Just another quick note about the media, They have focused on wetlands, wetlands, wetlands, but the case is really about tributaries. If Rapanos wins, where will the new line be drawn? If waters have to be "navigable" in order to be covered, then up to 99 percent of the waterways in the U.S. are off-limits to federal regulation, as Corps of Engineers attorney Lance Wood argued persuasively in a widely read Environmental Law Reporter article.)
Supreme Court Institute co-director Richard Lazarus, a professor at Georgetown University Law Center, predicted a win for the government at the panel discussion held yesterday (Feb. 21) after the arguments. The discussion is available as an MP3 file at GELPI's website).
Lazarus noted that both Roberts and Alito were Executive Branch lawyers and thus may have some innate sympathy for the government's position. In any case, the government went into the case knowing it had four votes -- Stevens, Souter, Ginsburg and Breyer. It just needs one. Somehow I doubt Alito will want to split off from Roberts in their first environmental decision.
One possibility is that the SWANCC four will write an opinion affirming the Sixth Circuit, and will be joined in a concurring opinion by Kennedy, Roberts and Alito. Time will tell, the wise man said.
Carabell's another story. The media did not pick up on the fact that the Carabells' lawyer conceded that the government could claim jurisdiction based on its "hydrological connection" theory. So instead of being joined at the hip (and lumped together in all the news stories), Rapanos could lose and Carabell could win -- or at least not lose, if the justices decide to send it back for fact-finding/.
Midlander Michael Rapanos, one of three of Rapanos' sons to attend the hearing, pulled a polling sheet out of his shirt pocket and said, "This is how I have them." After looking at the list, attorney Julie Kiel of Midland, Rapanos' attorney who helped with the case, pointed her finger at the sheet. "You won't get this one," she said. She was pointing at the newcomer, Justice Samuel J. Alito Jr. "We won't?" Michael Rapanos said. "No," said Kiel.
If they don't get Alito, they lose. I wonder if the newspaperman was really supposed to write that up…
Brief not up here? Link not working? Email Steve Davies, editor of ESWR
The government filed separate briefs in Rapanos and Carabell, while amici generally addressed both.