NEW YORK — U.S. Supreme Court Justice Antonin Scalia can’t be serious. In a recent decision he penned, he quoted “a famous exchange” in the 1942 movie “Casablanca” and a tale about “an Eastern guru” exclaiming, “Ah, after that it is turtles all the way down.” The first quote was intended to deride the whole business of wetland protection; the second made fun of fellow Justice Anthony Kennedy for his “misreading of our prior decisions.”
Scalia made these references, albeit in footnotes, in Rappanos v. U.S. The two cases the decision covered had to do with disputes on privately owned land containing wetlands. Environmental authorities objected to their development because the wetlands were found to be of the type that comes under the protection of the Clean Water Act. The CWA, created in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” was strengthened in subsequent years to cover wetlands. The rules and regulations worked out to implement the law have grown ever more complex and detailed.
Scalia wanted to do away with all the complexities. Their accumulation has turned the U.S. Army Corps of Engineers into a “despot,” he decided. The Corps, along with the Environmental Protection Agency, is a principal federal entity with jurisdiction over the CWA.
Scalia’s impatience with overregulation may not be utterly without merit, but the solution he demanded was extreme and silly. To detail “the immense expansion of federal regulation of land use,” he went on to expend many a word to show how “the Corps has stretched the term ‘waters of the United States’ beyond parody.” The remedy obvious to him was to restore dictionary definitions for some of the basic words employed in the CWA.
So, with “the waters,” the Supreme Court justice turned pettifogging grammarian asserted: “The use of the definite article (‘the’) and the plural number (‘waters’) show plainly” that the word refers to water “[a]s found in streams and bodies forming geographical features such as oceans, rivers, [and] lakes,” or to “the flowing or moving masses, as of waves or floods, making up such streams or bodies.”
Fair enough, you might say, especially when told that “the federally regulated ‘waters of the United States’ include,” in Scalia’s own words, “storm drains, roadside ditches, ripples of sand in the desert that may water once a year, and lands that are covered by floodwaters once every 100 years.” But you see at once that for any attempt to define something like “the waters” for legal protection, dictionary definitions never work. This you find as soon as you start online searches for technical definitions of “wetlands.”
For example, in a paper for the U.S. Geological Survey, Ralph Tiner of the U.S. Fish and Wildlife Service wrote that the “depressions” category of wetlands alone includes “swales, sloughs, prairie potholes, Carolina bays, playas, vernal pools, oxbows, and glacial kettles.” Are such definitions necessary? Absolutely, if only to narrow the scope of litigation.
A Supreme Court justice should know this. The job of the highest court is not just to serve as final arbiter of laws, rules and regulations, not to mention court decisions, but also to create definitions and redefinitions through interpretations and reinterpretations. Scalia remanded Rappanos v. U.S. to the lower courts.
Yet the problem isn’t simply that the decision he wrote, impetuous and self-indulgent, typifies the man known for conduct unbecoming a Supreme Court justice. His almost puerile, tantrum-like opinion with its running attack on fellow justices reminds us of the troublesome question: Why are nine — or, because of the majority rule, five — unelected officials given such a godlike power, “the power to make policy decisions that affect the lives and welfare of millions of Americans?”
That is the question Yale political scientist Robert Dahl asks in his book, “How Democratic Is the American Constitution?” (Yale, 2001). Dahl finds the setup of the Supreme Court with its “extensive power of judicial review” to be one of the more undemocratic elements of the U.S. system. “If you could simply match the intentions and words of the constitution, perhaps a stronger case could be made for judicial review. But in all important and highly contested cases, that is simply impossible.”
And the selection process of the justices is highly politicized, as we have recently witnessed in the wrangles over John Roberts and Samuel Alito. It assures that those selected “bring their own ideology, biases and preferences to bear.”
But this question is too involved to pursue here. I would merely add that Scalia misleads in the way he cites the “famous exchange” in Casablanca. The exchange goes, in its entirety: Captain Renault, the chief of police of Casablanca, asks the American cafe owner Rick Blaine, “What in heaven’s name brought you to Casablanca?” Rick, famously played by Humphrey Bogart, answers: “My health. I came to Casablanca for the waters.” Renault: “The waters? What waters? We’re in the desert.” Rick: “I was misinformed.”
As Scalia acknowledges, this Renault-Rick exchange appears in Save Our Sonoran Inc. v. Flowers, another case involving land development vs. wetland protection. However, Judge Sidney Thomas, of the Ninth Circuit Court, quoted the exchange at the outset of the decision he wrote not to point to “the absurdity of finding the desert filled with waters,” as Scalia put it, but to observe that this time it was not Rick but the U.S. Corps of Army Engineers that had been “misinformed.” The Corps had failed to notice water running through “the washes and arroyos of the arid” site proposed for development “during periods of heavy rain.”
In his eagerness to ridicule these findings, Scalia misread or, more likely, deliberately misrepresented Judge Thomas’s intention.
By subscribing, you can help us get the story right.