Discussion Group Report

"Liberals talk as if the world will end if President Bush gets to name some Supreme justices." claims Benjamin Wittes in an article in The Atlantic, May 2005. He says that in general liberals fear conservative judges too much in almost all areas, except in one--where the stakes are truly immense and they dramatically understate them.

He says the threat to reproductive rights has been oversold by liberals for decades. With respect to civil rights the foundations of modern civil rights law are exceptionally secure. Conservative judges nibble around the edges sometimes, but almost no one seriously argues about the basic meaning or legitimacy of core civil protections. In criminal law? Hardly. True, the Court has curtailed the Warren era's famed revolution in criminal procedure, and has rolled back review of state-court convictions. But this war is over; the conservatives have already won. Ironically some conservatives are now leading the court's aggressive rights-creation effort in criminal sentencing.

Then where have liberals tended to ignore the biggest threat posed by a conservative Court? It's in the environment. Environmental protection is not central to the fear-mongering of liberals that oppose conservative judges. "But the threat," he says, "to basic environmental protections from conservative jurisprudence is broad-based and severe."

Consider the Constitution's commerce clause, which empowers the national legislature to regulate "commerce…among the several states." Since the New Deal the commerce clause has been construed very broadly, becoming the constitutional backbone of much important civil rights legislation and of all the major environmental laws. Yet since 1995 the Court has issued a series of decisions that emphasize the limits of the commerce power. The potential dangers to the environment of these decisions are hard to overstate. While the environment itself is intrinsically interstate, not all environmental protection measures are regulations of commerce among the several states--or even regulations of commerce at all.

"Can the government, under the Endangered Species Act," asks one conservative judge, "protect a hapless toad, that...lives all its life in California?" The D.C. Circuit Court of Appeals upheld protection of the hapless toad, as the Fifth Circuit did of "six species of subterranean invertebrates found only within two counties of Texas."

A dissenting judge wrote, "For the sake of a species of 1/8 inch long cave bugs, which lack any known value in commerce, much less interstate commerce, the panel has crafted a constitutionally limitless theory of federal protection."

In recent years the Rehnquist Court has breathed life back into the notion of state's immunity from suits for money--an immunity rooted in the Eleventh Amendment. In 2001, the Fourth Circuit used an Eleventh Amendment argument to block an environmental suit that sought to force West Virginia officials to stop letting mining companies blow the tops off mountains to get at the coal inside. "A reinvigorated Eleventh Amendment," says Wittes, "could prove a disaster for federal environmental laws, which because of their unique structure could be unusually vulnerable to this doctrine."

If the courts limit federal environmental protection, can't the states step in and fill the gap? First, many environmental problems are inherently interstate and cannot be reasonably managed by state government. Winds carry polluted air across state borders, and migrating species don't check local species-protection laws before entering a state. In addition, judicial conservatives have greatly energized the takings clause of the Fifth Amendment, which prohibits government seizure of private property without "just compensation." But the courts in recent years have made aggressive use of the concept of "regulatory taking"--that is, government action that so diminishes property values as to constitute a taking even without a formal expropriation. The expanded concept of takings is already having dire consequences for environmental protection in the lower courts. Courts have found takings when the Army corps of Engineers denied a company a permit to mine limestone in wetlands in Florida and when federal agencies imposed water-use restrictions to protect restrictions to protect endangered smelt and salmon in California. The Rehnquist court has also tightened doctrinal requirements that limit citizen access to the courts. This greatly reduces the legal accountability of polluters.

What is the unifying theme of opposition to environmental protection? A libertarian suspicion of regulatory power, charges Wittes. Environmental laws represent some of the most aggressive uses of federal power, and by their nature they limit the use of private property, sometimes intrusively. They genuinely push up against the limitations on governmental power outlined in the constitution. Tighten these limitations, as conservatives tend to do, and the dominoes of environmental law quickly begin tumbling.

In recent years some conservatives have become sensitive to the problem. In fact, several of the most important recent pro-environment opinions--including the Fourth Circuit's decision affirming protection for the red wolf--were issued by conservative luminaries.

But a portion of the judicial right harbors a strain of simple hostility to environmental values. According to Wittes, what hangs in the balance in the future composition of the Supreme Court, more than the fate of abortion rights, civil rights, or criminal justice, is the fate not only of the Flower-Loving Fly, of the red wolf, the hapless toad, the West Virginia mountains--but of the air we breathe and the water we drink.