Justice Brett Kavanaugh penned two opinions last week which conservatives of a certain stripe had reason to resent. For the first, from April 23, just follow the following link: Kavanaugh would set a bad precedent on precedents.

An excerpt from the second one is below.

Kavanaugh and Roberts join liberals on ‘Clean Water’ case (April 24):

There they go again: In a Thursday decision involving the Clean Water Act, Supreme Court Justices John Roberts and Brett Kavanaugh joined the more liberal justices in inventing language to help legislation achieve what they consider its “intended” purpose.

Whereas more consistent conservatives believe in applying only the plain language of a statute or the Constitution, Roberts and Kavanaugh sometimes stray from that ideal. In the case at hand, County of Maui v. Hawaii Wildlife Fund, they joined the decision by Justice Stephen Breyer and the other three liberals to create, almost from thin air, a new rule that the Clean Water Act applies in circumstances that are “the functional equivalent” of the situations expressly listed in the statute.

Never mind that the words “functional equivalent” appear nowhere in the Clean Water Act itself. Yet, the court majority arrogated for itself the job of discerning “the statutory provision’s basic purposes,” even where the statute not only was largely silent, but actually contained language leaning in the other direction.

At issue was the longstanding practice in Maui County, Hawaii, repeatedly allowed by the Environmental Protection Agency, of injecting partially treated sewage into underground wells that in turn leach, through groundwater, to the Pacific Ocean. The Clean Water Act gives the EPA regulatory authority over the discharge of any pollutant from a “point source” into “navigable waters.” A “point source” is a “discernible, confined and discrete conveyance.” The Clean Water Act quite expressly leaves regulation of nonpoint source pollution and of groundwater to the states, rather than to the EPA….

[The full column is at this link.]


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