High Court Agrees to Hear Late-term Abortion Case

RAY SUAREZ:

The court today heard challenges to federal environmental laws and announced its decision to hear arguments on state abortion restrictions, all of that with Justice Samuel Alito on the bench for the first time.

For more on all of that, we turn to Marcia Coyle, Supreme Court reporter for the National Law Journal.

And the joined arguments were Rapanos versus the United States, Carabell versus the U.S. Army. What was at stake?

MARCIA COYLE:

Really, what's at stake is the future of wetlands in the United States. This case arose out of the plans of two separate property owners to fill in their wetlands in order to develop, in one case a condominium complex, and in the other case a shopping mall.

Under the Federal Clean Air Act — I'm sorry, under the federal Clean Water Act, you are prohibited from discharging pollutants, which could include fill material, dredging material — into navigable waters without a permit.

They challenged whether the Clean Water Act actually applied to their land, their wetlands, because their wetlands do not abut navigable waters. In one case, the property owner says that the nearest navigable water is Lake Saint Claire in Michigan, and that's 20 miles away. So the battle is really over how far does the Clean Water Act reach in terms of regulating what is done on wetlands.

RAY SUAREZ:

So the petitioners were arguing, basically, the federal government shouldn't have any say over whether I develop my land. What did the respondents, the Army Corps of Engineers and the United States itself have to say?

MARCIA COYLE:

Well, the government said the act defines navigable waters only as waters of the United States, not exactly a very specific definition. But the Army Corps of Engineers has interpreted "waters of the United States" to mean not just wetlands that abut navigable waters, but wetlands that are adjacent to, for example, drainage ditches that may empty into tributaries that empty into navigable waters, as is the case with these properties in Michigan.

And the government said the courts should give deference to the Corps' interpretation here because it is consistent with the goals of the Clean Water Act, which is to preserve the purity of our waters. The petitioners counter that, well, there's nothing in the act about tributaries, so the act just doesn't cover these waters.

The government's theory, according to Justice Scalia, would allow regulation of mud puddles on land, and he said he thought it was very difficult to believe under anybody's concept that a storm drainage could actually be waters of the United States.

But on the other hand, Justice Souter pointed out, in terms of favoring the government's argument and disfavoring what the property owners were saying here, the property owners, which don't see regulation of tributaries and other kinds of "waters" that could flow into navigable waters would allow a polluter to go way upstream and pollute and get away with it, and Justice Souter pointed out he found it hard to believe Congress intended to allow that kind of end-run around the act.

RAY SUAREZ:

It sounds like the argument got to some pretty technical matters about how water moves around the United States, but ultimately at stake — is the enforceability of the Clean Water Act at stake?

MARCIA COYLE:

Yes, from the environmentalist's point of view, really wetlands are at stake. Where the Supreme Court draws the line on the reach or the scope of the Clean Water Act will depend — will define how many wetlands can continue to exist as wetlands, whether developers can continue to fill them in without permits, without federal regulation.

From the other side, from business's point of view, where the Supreme Court draws the line can mean the difference in terms of rather substantial costs and burdens under the Clean Water Act, as well as sometimes criminal fines.

It appeared to me after the arguments that the justices weren't pleased really with either side because both sides kind of went to the extreme and didn't really tell the court where they thought a reasonable line would be.

Justice Kennedy pointed out in earlier cases the court has said there has to be a substantial nexus between the wetland and the navigable water. Well, where is it here, he asked?

They really didn't get a clear view from either side as to a reasonable line.

RAY SUAREZ:

As was mentioned, this was Justice Samuel Alito's first day on the bench, his first public argument. Was he actively involved in the questioning?

MARCIA COYLE:

He was – in the first case – the first argument, he asked one question in the second argument he asked several questions.

He appeared to me much as he appeared during his confirmation hearings. He has a rather inscrutable face a slightly rumpled exterior, and he didn't seem entirely comfortable in his high-backed leather chair, but, hey, you know, it was his first day, and he probably knew the eyes of the court were on him.

I imagine, I think, as with other new justices, it takes a little while before you get into the very, very quick give-and-take of justices and lawyers during oral arguments.

RAY SUAREZ:

Now, during the confirmation hearings, it was mentioned quite a bit that Justice Alito would have a lot to say about several issues — abortion, executive power, free speech, rights of minorities — it looks like those prophecies are coming true.

MARCIA COYLE:

It does. In fact, even with the environmental cases, as we were leaving the courtroom, some of us were saying a month ago we'd be leaving these arguments saying, well, it looks like Justice O'Connor, it's up to her. And leaving today's arguments, it looks as though it's up to Justice Alito, because the court appeared to be evenly divided.

And as we learned today, there are issues coming up that Justice Alito is going to be key in. On Friday, the court announced it was scheduling for re-argument a case that had been argued earlier involving First Amendment protection for public employees — an indication they were split without Justice O'Connor. He'll be decisive.

Also, the court has postponed the government's request to dismiss a challenge to the military tribunal system set up to try enemy combatants at Guatanamo Bay. The court said it's going to consider whether it has jurisdiction, the power to hear that case; when it actually hears the case in late March, he will be critical there, as well. Justice Roberts — Chief Justice Roberts has to recuse himself from that case.

RAY SUAREZ:

Marcia Coyle, thanks a lot.

MARCIA COYLE:

You're welcome.