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When the Supreme Court speaks on a disputed statutory interpretation question, its words and edicts undoubtedly are the final judicial word, binding lower courts and the executive branch. Its majority opinions are the law. But the Court’s opinions can nonetheless be assessed for how well they hew to fundamental elements of respect for the rule of law. In particular, law-respecting versus law-neglecting or lawless judicial work by the Court can be assessed in the statutory interpretation, regulatory, and separation of power realms against the following key criteria, which in turn are based on some basic rule of law tenets: analysis of the Court’s respect for other branches’ constitutional roles and, in particular, congressionally enacted policies; the predictability of statutory interpretation moves by the Court; the rigor and accuracy with which the justices grapple with other legal actors’ actions and contentions; plus the Court’s characterization and honest work with its own precedents. In addition, the Court’s opinions are lawlike or less lawlike depending on the clarity of the Court’s reasoning and fact-law linkages, so its own prospective effects are clear and knowable.

The Court’s ruling in Sackett v. EPA, which radically reduces the reach of the Clean Water Act’s protected “waters of the United States,” is unusually lawless even for a Court that in the last few years has often shown itself willing to overrule precedents. Overruling unsettles the law, but if done transparently and with full grappling with the old law and clear explanation, it is not necessarily lawless. Sackett involves unacknowledged overruling, and further shows lawlessness in its statutory interpretation, its characterization of its past Clean Water Act precedents, and in repeatedly characterizing the stakes and Act’s reach without hewing to the case facts, agency records, or balanced work with the Clean Water Act's actual governing texts.

This brief Article, which is part of a follow-on paper symposium with scholars analyzing Sackett, parses the Sackett majority opinion against the backdrop of the statute’s actual provisions, the facts of the dispute, decades of tested and vetted regulatory materials, and key environmental and administrative law precedents. With almost no acknowledgment of the revolution wrought by the opinion, the Court—speaking through the majority opinion of Justice Samuel Alito—leaves a trail of abandoned, undercut, and unsettled bodies of law. Some owners of land-water borderline properties with an eye on new real estate development may have reasons to celebrate, antiregulatory think tanks have been rewarded, plus lawyers may benefit from sorting out new legal confusion. But as a result of Sackett, the nation’s waters are far more imperiled, others’ expectations dashed and needs neglected, and the nation’s legal fabric has been harmed. The majority opinion is built on layers of lawlessness.

Publication Citation

Case Western Law Review, Vol. 74, Issue 2, 317-351.