SCOTUS Watch: Major Decisions At The End of The Term

Much of the news involving the Supreme Court this year has involved the corruption of Supreme Court justices, in particular Clarence Thomas, and Chief justice Roberts’ refusal to adopt the Code of Conduct for United States Judges for the Supreme Court. Congress can pass law to do it for him.

The Roberts Court has been notorious for leaving its most controversial decisions to the month of June to be decided before the end of the court’s term on June 30.

The Court got an early jump on June with a major decision decided on May 25. Amy Howe reports for SCOTUSblog, Supreme Court curtails Clean Water Act:

The Supreme Court on Thursday established a more stringent test to determine whether the Clean Water Act applies to a wetland. The ruling was a setback for the Environmental Protection Agency and a victory for an Idaho couple, Michael and Chantell Sackett, who have been battling with the federal government for over 15 years in their efforts to build a house on an empty lot near a large lake.

The Sacketts’ legal battle began shortly after they began backfilling their property to prepare the lot, which is about 300 feet from Priest Lake, for construction back in 2007. The Sacketts received a notice from the EPA to stop work because their lot contains wetlands protected by the CWA, which bars the discharge of pollutants, including rocks and sand, into “navigable waters.” The CWA defines navigable waters as “waters of the United States.” The EPA reasoned that the wetlands on the Sacketts’ lot fed into a non-navigable creek that then led to Priest Lake.

In agreeing that the Sacketts’ lot is a wetland, the U.S. Court of Appeals for the 9th Circuit applied the test outlined by Justice Anthony Kennedy in Rapanos v. United States: whether there is a “significant nexus” between the wetlands and waters that are covered by the CWA, and whether the wetlands “significantly affect” the quality of those waters.

On Thursday the Supreme Court reversed the 9th Circuit’s ruling. Instead, Justice Samuel Alito explained, courts should apply a more stringent test, outlined by four justices (including Alito, Chief Justice John Roberts, and Justice Clarence Thomas) in Rapanos, in which the CWA applies to a particular wetland only if it blends or flows into a neighboring water that is a channel for interstate commerce.

So the minority in Rapanos overruled the majority opinion of former Justice Kennedy with the new roster on the court.

Alito pointed to the text of the CWA, emphasizing that the law’s use of the term “waters” generally refers to relatively permanent bodies of water such as lakes and rivers. But when the law is read as a whole, Alito continued, it is clear that some “adjacent” wetlands will also qualify as “waters of the United States.” This means, he wrote, that wetlands that are entirely separate from traditional bodies of water will not qualify. But the CWA will apply, Alito concluded, to wetlands that are “as a practical matter indistinguishable from waters of the United States” because they have a “continuous surface connection” with a larger body of water, “making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

Under that test, Alito explained, the lower court’s ruling must be reversed. “The wetlands on the Sacketts’ property,” he reasoned, “are distinguishable from any possibly covered waters.”

Alito rejected the “significant nexus” rule advanced by Kennedy in Rapanos and by the EPA in this case, describing it as “particularly implausible.” Under the EPA’s rule, Alito emphasized, it would be difficult if not impossible for many landowners to determine whether the CWA would apply to their property – an especially undesirable result when those landowners could face “severe criminal sanctions for even negligent violations” of the law.

Justice Clarence Thomas penned a separate concurring opinion that was joined by Justice Neil Gorsuch. Thomas contended that the Supreme Court’s ruling in the Sacketts’ case “curbs a serious expansion of federal authority that has simultaneously degraded States’ authority and diverted the Federal Government from its important role as guarantor of the Nation’s great commercial highways into something resembling ‘a local zoning board.’” But, Thomas cautioned, Congress limited federal power under the CWA, and the EPA and the U.S. Army Corps of Engineers should “respect that decision.”

And more broadly, Thomas characterized the court’s cases interpreting the CWA as “indicative of deeper problems with the Court’s” cases interpreting the Constitution’s commerce clause, which gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” When the Constitution was drafted, Thomas noted, the term “commerce” referred to “trade or exchange — not all economically gainful activity that has some attenuated connection to trade or exchange.” But the Supreme Court, Thomas complained, has strayed from that “limited meaning” and “licensed federal regulatory schemes that would have been ‘unthinkable’ to the Constitution’s Framers and ratifiers.”

So the corrupt Justice Thomas is arguing against a long line of Supreme Court decisions on the commerce clause dating back to the New Deal. He would like to reverse the past century of progress under Supreme Court decisions applying the commerce clause.

Four justices – Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Ketanji Brown Jackson – agreed that the CWA does not apply to the wetlands on the Sacketts’ lot, but they disagreed with the majority’s reasoning. In an opinion joined by the three liberal justices, Kavanaugh contended that “[b]y narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.” For example, Kavanaugh noted, under the court’s new test, the wetlands on the other side of levees on the Mississippi River will not be covered by the CWA, even though they “are often an important part of the flood-control project” for the river. Moreover, Kavanaugh added, the court’s new test “is sufficiently novel and vague” that it will create precisely the kind of regulatory uncertainty that the majority criticized.

Instead, Kavanaugh would adopt a more expansive test, under which the CWA would apply to wetlands that are either next to a larger body of water or separated from such a body of water by a man-made or natural barrier, such as a dike or a beach dune. Because the wetlands on the Sacketts’ lot “do not fall into either of those categories,” Kavanaugh agreed that they would still not be covered by the CWA.

Kagan also wrote a brief opinion of her own, joined by Sotomayor and Jackson, in which she criticized what she characterized as “the Court’s appointment of itself as the national decision-maker on environmental policy.” In her view, Congress deliberately drafted the CWA with a broad reach to “address a problem of ‘crisis proportions.’” Although the majority disagrees with that decision, she wrote, it cannot “rewrite Congress’s plain instructions because they go further than” the court would like. But that is precisely what the majority did here, she concluded, just as it did last year when it curtailed the EPA’s authority to regulate greenhouse gas emissions.

Damien Schiff of the Pacific Legal Foundation, who represented the Sacketts, said in a press release that Thursday’s decision “returns the scope of the Clean Water Act to its original and proper limits.” “Courts now have a clear measuring stick for fairness and consistency by federal regulators. Today’s ruling is a profound win for property rights and the constitutional separation of powers,” Schiff said.

But Sam Sankar of the environmental group Earthjustice criticized the decision, saying that it “undoes a half-century of progress generated by the Clean Water Act.  Almost 90 million acres of formerly protected wetlands now face an existential threat from polluters and developers.” “The Court’s decision to deregulate wetlands will hurt everyone living in the United States,” Sankar said.

On June 2, in an 8-1 decision on Thursday, the justices provided a new definition to the limits on the right to strike under federal labor law. Sharon Black reports for SCOTUSblog, Supreme Court rules against union over strike liability:

At issue in Glacier Northwest v. International Brotherhood of Teamsters, Local Union 174was whether an employer could sue its employees’ union under state law for damage the employer incurred as a result of the union’s strike. The case produced a surprisingly broad majority agreeing that the strike at issue was not even arguably protected by the National Labor Relations Act. Only Justice Ketanji Brown Jackson dissented.

Federal labor law normally precludes any application of state law to labor activity under a doctrine called “Garmon preemption.” The workers in this case, who drive concrete mixers, went out on strike. Drivers allowed Glacier to load their trucks with concrete. At the appointed hour for the strike, several drivers drove their trucks back to Glacier’s headquarters and walked off the job. The company was unable to deliver the concrete and some of it hardened, requiring the company to scramble to find a way to safely dump the concrete, destroy it, and cart it away.

Glacier sued the union in state court for “tortious destruction” of its property – the spoiled concrete. The Washington Supreme Court dismissed the case, finding that it wasn’t appropriate to apply state tort law to a labor dispute even arguably covered by NLRA under Garmon.

In a decision by Justice Amy Coney Barrett that was joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh, the court held that Glacier could sue the union in state court for damages because the Teamsters’ strike was not even arguably protected by the NLRA. The court ordered the case remanded to the state court for further proceedings.

The court’s decision rests on a fact-specific assessment of whether the Teamsters took “reasonable precautions” to protect Glacier’s property from “foreseeable, aggravated, and imminent danger due to the sudden cessation of work.” The National Labor Relations Board – the federal agency responsible for enforcing labor law — has long held that unions that fail to take “reasonable precautions” may not be protected by the NLRA when strikes lead to damage to perishable goods or property. The court’s decision on Thursday relied on Glacier’s allegations that the Teamsters purposely timed the strike to ensure that the concrete would harden by choosing to strike only after Glacier had “batched” the wet concrete into the trucks.

In a decision by Justice Amy Coney Barrett that was joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh, the court held that Glacier could sue the union in state court for damages because the Teamsters’ strike was not even arguably protected by the NLRA. The court ordered the case remanded to the state court for further proceedings.

The court’s decision rests on a fact-specific assessment of whether the Teamsters took “reasonable precautions” to protect Glacier’s property from “foreseeable, aggravated, and imminent danger due to the sudden cessation of work.” The National Labor Relations Board – the federal agency responsible for enforcing labor law — has long held that unions that fail to take “reasonable precautions” may not be protected by the NLRA when strikes lead to damage to perishable goods or property. The court’s decision on Thursday relied on Glacier’s allegations that the Teamsters purposely timed the strike to ensure that the concrete would harden by choosing to strike only after Glacier had “batched” the wet concrete into the trucks.

The majority distinguished a long line of cases in which the NLRB had held that the NLRA protected strikes that resulted in the loss of perishable goods like slaughtered poultry and fresh milk. Here, the majority found that the union’s decision about when to start the strike resulted not only in the destruction of a perishable product, like in the poultry and milk cases, but that – unlike the other perishable goods cases – the decision about timing also “prompted the creation of the perishable product.” Specifically, the court found determinative and distinguishing that the Teamsters allowed Glacier to batch the wet concrete when they knew that they had no intention of delivering the concrete and that the result would likely be spoiled concrete and possibly damaged trucks. The majority then sent the case back to the state court for it to consider Glacier’s tort suit.

Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, agreed with the result that the majority reached but not its reasoning. Alito explained that he would have allowed Glacier’s tort suit to proceed based simply on a finding of intentional damage to the concrete. Thomas, in a separate opinion joined by Gorsuch, urged the court to reconsider Garmon preemption in a future case.

So reversal of another Supreme Court precedent, to limit the rights of labor.

In her first solo dissent as a justice, Jackson faulted the majority for ignoring the fact that the NLRB had undertaken its own investigation of the facts since Glacier filed its tort suit. The agency found that those facts supported the issuance of a complaint alleging that Glacier had filed the tort suit to retaliate against the Teamsters for striking. Implicit in the NLRB’s complaint, Jackson found, is a conclusion that the strike is arguably protected. Once the NLRB has even nodded in the direction of protection for a strike, Jackson said, the it should be given the opportunity to resolve the issue and require the state court to engage in a “jurisdictional hiatus.” Jackson admonished the majority for not following precedent. “Garmon makes clear that we have no business delving into this particular labor dispute at this time,” she wrote.

Jackson also disputed the majority’s characterization of the facts. She wrote that the Teamsters’ handling of the concrete was well within the lines drawn by the other perishable-goods cases. In her most strongly worded passage, Jackson accused the majority of requiring workers to undercut their own power by giving notice of their intent to strike. “Workers are not indentured servants,” she wrote, “bound to continue laboring until any planned work stoppage would be as painless as possible for their master.”

[W]hile the basic right to strike remains intact following the court’s decision, Glacier fits the pattern of this court: chipping away at labor rights. Sometimes the justices do it in big chunks and sometimes in smaller ones. But this case, like the others, moves in the same direction.

It appears that the Roberts Court is continuing its practice of  reversing of Supreme Court precedents, even recent precedents of the Roberts Court. This does not bode well for the remaining big cases in June.