Supreme Court kicks off a new term with controversial cases – and a new justice
Associate Justice Ketanji Brown Jackson took part in her first oral argument, repeatedly jumping into a fray over the EPA's power to oversee the nation's waters.
- The Supreme Court opened oral argument to the public for the first time since the pandemic.
- Conservatives signaled skepticism of the EPA's interpretation of the Clean Water Act.
- The court agreed to hear a challenge to the immunity that shields social media firms from lawsuits.
WASHINGTON – The Supreme Court returned to work Monday with a courtroom reopened to the public, a new and historic justice on the far end of the bench and little sign of the raging national debate over abortion it set off only three months ago.
After more than two years of hearing oral arguments remotely or in a mostly empty courtroom because of the COVID-19 pandemic, the nine justices faced a packed crowd as they took their tall, black chairs – most of them shifting seats based on seniority to accommodate the arrival of Associate Justice Ketanji Brown Jackson.
Before the justices emerged,, the court announced they had added nine cases to a docket already full of contentious issues such as race-conscious college admissions and LGBTQ rights. Among the new cases was a challenge to the legal immunity that shields social media firms like Twitter from lawsuits over user-generated content – a protection that has drawn bipartisan criticism.
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Yet the court declined to take up a number of other controversies. It turned away an appeal from Michael Lindell, a prominent supporter of former President Donald Trump and the founder of MyPillow, who is fighting a $1.3 billion defamation suit over allegations about the 2020 election. And it declined to review the federal ban on bump stocks, a device that lets a shooter fire a semi-automatic rifle more rapidly.
As usual, the court offered no explanation for why it took or denied the cases it did.
Other than tighter-than-normal security, there was little sign of the tension that gripped the nation over the summer following the decision to overturn Roe v. Wade – an outcome that polls show resulted in a nosedive in the court's approval rating and led to a rare debate among a few of the justices over how the public perceives their work. Anger about the decision prompted critics on the left to question the court's legitimacy.
Only 47% of Americans said they had a "great deal" or "fair amount" of trust in the high court, a 20-percentage point drop from 2020 and a 7-percentage point drop from the previous year, according to a Gallup poll last month.
Though the Supreme Court will hear a number of culture war cases this term, the arguments Monday focused on a more technical question of environmental law.
For nearly two hours the justices debated the scope of the Clean Water Act, the 1972 law that gives the Environmental Protection Agency authority to regulate the "waters of the United States" but that left the definition of that term somewhat ambiguous. For years courts have wrestled with how far the EPA's oversight extends and the latest case deals with a wetland in Idaho that is near Priest Lake in the state's panhandle.
Several members of the 6-3 conservative majority tossed cold water on the standard the EPA uses to determine if such a wetland is subject to federal permitting requirements and oversight. Chief Justice John Roberts summed up the challenge facing the court by noting that water often flows in ways that are difficult to predict or measure: "Water goes everywhere, eventually."
Jackson, the first Black woman to serve on the high court in its history, technically joined her colleagues in June but she took part in her first oral argument Monday. Though she is the least senior justice, she repeatedly jumped in to press the lawyer representing the family that is seeking to develop the property purchased more than a decade ago.
"Why is it that your conception of this does not relate in any way to Congress' primary objective?" Jackson asked at one point. "Congress cared about making sure that the chemical, physical and biological integrity of the nation's waters was protected."
Damien Schiff, arguing for the family that is fighting the EPA, responded by noting that "no statute pursues its purpose or its objective at all costs."
Associate Justice Neil Gorsuch, on the other hand, pressed the government for answers about how a property owner is supposed to know that their land might be covered by the EPA's regulations – absent some clear rule, such as a set distance from a navigable river or lake. Gorsuch suggested he wasn't particularly satisfied with the EPA's answer.
"If the federal government doesn't know, how is a person subject to criminal time in federal prison supposed to know?" Gorsuch asked.
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Among the other major issues the court will deal with term: A challenge to the race-conscious admissions policies at Harvard College and the University of North Carolina; a case that questions how much power state legislatures have to set the rules of federal elections and a free speech challenge to a Colorado law that prohibits discrimination against LGBTQ people.