Reacting to a blunt-talking concurring opinion submitted by Supreme Court Justice Brett Kavanaugh taking on the ruling authored by colleague Sam Alito, Loyola Law School Professor Jessica Levinson suggested in a new column for MSNBC there is the makings of a schism developing within the conservative majority court.
At issue was the court severely limiting the ability of the government to enforce the Clean Water Act, with Kavanaugh agreeing with the ultimate decision, but siding with the liberal wing in pointing out that the court is making law instead of interpreting it.
According to Levinson, the court's ruling was an egregious assertion of the court's authority and "the court’s ruling isn’t merely practically pernicious for those who care about the environment; it is legally wrong."
As she notes, the conservative wing of the court continually emphasizes that they are jurists and not elected lawmakers and, surprisingly, Kavanaugh reminded Alito of that in the text of his concurrence.
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"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," she suggested before explaining, "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.'"
"The question before the court in this case was which wetlands are considered to be 'adjacent' to a body of water covered by the act, and therefore itself protected by the act," she wrote. "While the court’s ultimate decision was unanimous, its reasoning was splintered. A thin five-member majority of the court, defying basic rules of legal interpretation, concluded that 'adjacent' means 'adjoining.'"
As she notes Kavanaugh pointed out that the court went out of its way to ignore the obvious meanings of the words involved.
"Kavanaugh tells us exactly why Justice Alito got it wrong, as well: his interpretation goes against the 'ordinary meaning' of the word 'adjacent' and the 'longstanding agency practice' of the Army Corps. Referring to dictionaries for the plain and ordinary meaning of the word adjacent, Kavanaugh notes, 'the definitions of "adjacent" are notably explicit that two things need not touch each other in order to be adjacent,'" she elaborated.
According to Levinson, Kavanaugh was being brutally blunt with Alito and his other conservative colleagues when he wrote, "I would stick to the text.”
"These six words are nothing less than the judicial version of a grenade," the law professor wrote before adding, "Kavanaugh is essentially reminding the majority that they had one job, and one job alone, when interpreting a federal law: to follow the text. They failed to do so. We will live with the practical and legal consequences of that failure for years to come."
You can read her whole column here.