There is a lot of talk about our politically divided nation. We have “red states” and “blue states.” Some of us are #TeamTrump, and some are #NeverTrump. The 99 percent are fighting the 1 percent, bathrooms have become battlefields, and apparently we can’t even agree if the earth is round. Despite all this, I do not think we’re as bad off as you might otherwise believe.
Our nation has always had divisions. James Madison wrote about this in the Federalist Papers when he was arguing in support of ratification of the Constitution. He called the divisions of the time “factions.” He described factions as a necessary cost of liberty, noting that: “Liberty is to faction what air is to fire.” Madison believed, rightly so, that the only way to eliminate division in our nation was to eliminate freedom as well. By having a nation which fosters liberty, we must accept that such a nation will inherently be divided as various factions squabble amongst themselves.
However, there is one particular set of factions which have been a little overblown by the media. That is the divide between the so-called “liberal” Supreme Court justices and “conservative” Supreme Court justices. Watching only the nightly news, a casual observer of the Supreme Court might think that most of the court’s decisions are split 5-4 right down party lines. During the recent nomination of Justice Kavanaugh, I saw countless political pundits wring their hands on television worrying about how the nomination would strengthen the conservative voting block on the court.
The truth is that the Supreme Court issues unanimous decisions far more often than 5-4 split decisions. In fact, unanimity is a more common outcome than any other result. Even when unanimity isn’t reached, cases are often resolved by overwhelming majorities. Less than one-fifth of Supreme Court cases are decided by a 5-4 split decision. Even those split decisions aren’t always the liberal-conservative splits the media might have led you to believe.
Conservative Justices Scalia and Thomas joined with liberal Justice Ruth Bader Ginsburg to dissent in a 6-3 decision in the 2014 case of Jones v. United States regarding a drug sentencing issue. In fact, the conservative Scalia and liberal Ginsburg were in agreement in far more cases during their tenure on the court together than they were in opposition to one another. The 2017 case of Sessions v. Dimaya was a 5-4 decision with conservative Justice Neil Gorsuch joining the liberal wing of the court striking down certain immigration laws as unconstitutionally vague.
Just this year, the media gave a lot of attention to the Masterpiece Cakeshop case which concerned a baker that did not want to make wedding cakes for gay couples. However, that case was decided with a 7-2 supermajority. Only Justices Ginsburg and Sotomayor dissented. The liberal justices Kagan and Breyer joined the majority and ruled in favor of the baker.
A few weeks ago, the court decided the case of Weyerhaeuser v. US Fish and Wildlife Service. This case was a great example of the court’s tendency toward consensus as well as another example of the government overreach which I tend to rail against on this opinion page. The Weyerhaeuser case involved the protection of the dusky gopher frog as an endangered species. The dusky gopher frog is about three inches long, and it has the endearing habit of covering its eyes with its front legs when it feels threatened, peeking out periodically until the danger passes.
More than 98 percent of the frog’s natural habitat has been destroyed over the last century, and by 2001 there were only about 100 dusky gopher frogs left alive in the wild. That led that the US Fish and Wildlife Service to list the frog as an endangered species in 2001. In 2010, the Wildlife Service designated various areas of land as “critical habitats” for the frog in an effort to help the species recover. Included in the critical habitat was an area of 1,544 acres in Louisiana where the frogs were thought to have lived over 50 years ago. However, no dusky gopher frog has been seen in the entire state of Louisiana since at least 1965. Furthermore, the Wildlife Service admitted that none of the designated lands in Louisiana were suitable for the frog to live in now. If dusky gopher frogs were moved to this critical habitat then they would die. Nevertheless, the government insisted it was still critical habitat since the land might be able to be substantially modified and once again become suitable for the frogs.
Once an area of land is designated as a critical habitat for an endangered species, then there are serious restrictions placed on what a landowner can do with their property. A group of families operated a tree farm on a portion of the Louisiana land designated as critical habitat, and they understandably objected to the new constraints placed on their property. Like any good American, they sued. Ultimately, the Supreme Court decided, unanimously, that the Wildlife Service overstepped its authority. The court decided that words have meaning. In order for an area of land to be critical habitat, it must first be a habitat. Since none of the land in Louisiana could actually be a habitat for the frogs in question, the Supreme Court decided that the Wildlife Service could not declare that land a critical habitat.
In the aftermath of the circus that was the confirmation process of Justice Kavanaugh, as well as after the recent presidential ruminations about judicial partisanship, please be aware that the Supreme Court is a lot less partisan than the talking heads on television might lead you to believe.
Please also be aware that it is a federal crime to harass dusky gopher frogs wherever they may be found in the United States: 16 USC §§1532(19), 1538(a)(1)(B), 1540(b) & 50 CFR §17.11.
John Judkins is a Greenfield attorney.