Dissent of the Day

A reader shares his thoughts on my earlier post about the Supreme Court and its recent decision in Winter v. Natural Resources Defense Council. Here is an excerpt:

The issue in Winter was not, as you so colorfully frame it – safety of people or safety of fish – but whether environmental groups were entitled to a preliminary injunction due to the Navy’s failure to adhere to the requirements of the National Environmental Policy Act of 1969 (NEPA). To make it even more complicated, the analysis involved the standards for a preliminary injunction and balancing potential equities. What is clear, however, is that Justice Ginsburg’s dissent had very little to do with the ultimate issue of whether the naval exercises should trump environmental concerns. Rather, she focused on the legal requirement that the Navy was required to prepare an environmental impact statement prior to taking action that would jeopardize marine life.
So, even on the most basic level, Justice Ginsburg’s dissent was not about balancing whether fish or people were more important, but whether the Navy should be required to follow the law. The dissent cites that the NEPA legislation was designed to force administrative agencies to consider environmental concerns as part of their decision making process. It does not mean that these environmental concerns will trump. As Judge Ginsburg pointed out, nothing in the law would have prevented the Navy from conducting its exercises because the NEPA statute does not mandate any particular result – only that the study be performed.
I do not know enough about the case or the various procedural issues to opine whether Justice Ginsburg’s dissent was correct, but I do know that the issue was not at all as you framed it. Moreover, if the issue truly were as you framed it – rule of law v. conducting the war on terror – contrary to your conclusion, the Court should have certainly favored upholding the law, and I hope that President Obama will select Justices with that first and foremost in their mind. Indeed, it is hard to argue for a judicial nominee who says, “I will not permit the law or the constitution to impede the war on terror!” although that seems to be your point.

You can read his commentary in its entirety after the jump (click on “Read the rest of this entry”)

The full “Dissent of the Day”:

It is always dangerous to argue “We will not win the Global War on Terror if the Supreme Court uses its unfettered power to restrict the activities of military, intelligence and law enforcement communities.” It’s the very sweep of that statement that makes it absurd, and undermines any discussion about whether one Supreme Court decision (and one that relied heavily on procedural issues over substance) was correctly decided.
Even those who think that they’re “still right” must realize that the Court has a role in protecting the primacy of the rule of law, even during the war on terror. Certainly, I imagine that you would expect the Supreme Court to strike down a law that called for the imprisonment of people for criticizing the President’s operation of the war as a violation of free speech. And, it would hardly be a fair criticism of the Supreme Court to argue that because the Jihadists are able to punish dissent in the most extreme ways, the U.S. Government should be able to do likewise. Similarly, if Congress passed a law permitting warrantless searches, it is the responsibility of the Supreme Court to strike down such a law, and there is no room for any argument that the Fourth Amendment should be scrapped altogether because it otherwise ties our hands in the war on terror.
The Supreme Court’s role in protecting liberty is as important now – probably more so – than when the country is not at war. We already have too many examples of the sometimes blind pursuit of war ends by the government. The Founder’s intended that there be a check on such power, and the Supreme Court is required to fill that role.
Now, let’s consider the Winter case. The issue in Winter was not, as you so colorfully frame it – safety of people or safety of fish – but whether environmental groups were entitled to a preliminary injunction due to the Navy’s failure to adhere to the requirements of the National Environmental Policy Act of 1969 (NEPA). To make it even more complicated, the analysis involved the standards for a preliminary injunction and balancing potential equities. What is clear, however, is that Justice Ginsburg’s dissent had very little to do with the ultimate issue of whether the naval exercises should trump environmental concerns. Rather, she focused on the legal requirement that the Navy was required to prepare an environmental impact statement prior to taking action that would jeopardize marine life.
So, even on the most basic level, Justice Ginsburg’s dissent was not about balancing whether fish or people were more important, but whether the Navy should be required to follow the law. The dissent cites that the NEPA legislation was designed to force administrative agencies to consider environmental concerns as part of their decision making process. It does not mean that these environmental concerns will trump. As Judge Ginsburg pointed out, nothing in the law would have prevented the Navy from conducting its exercises because the NEPA statute does not mandate any particular result – only that the study be performed.
I do not know enough about the case or the various procedural issues to opine whether Justice Ginsburg’s dissent was correct, but I do know that the issue was not at all as you framed it. Moreover, if the issue truly were as you framed it – rule of law v. conducting the war on terror – contrary to your conclusion, the Court should have certainly favored upholding the law, and I hope that President Obama will select Justices with that first and foremost in their mind. Indeed, it is hard to argue for a judicial nominee who says, “I will not permit the law or the constitution to impede the war on terror!” although that seems to be your point.
It was far too common in the Bush administration not to respect the rule of law, and more often than not the administration justified this attitude by claiming that the war on terror – our very safety – demanded it. However, if history teaches anything, it is that subordinating cherished values in the name of fighting the war on terror is a far greater threat to our way of life than the threat it aims to combat.
Finally, your cavalier dismissal of Roe v. Wade is unjustified. For one, the right to have a safe abortion is significant, and certainly more so than the issue of whether environmental studies are necessary before Naval exercises may be conducted. Although you may be correct that a reversal of Roe would not cause states to ban abortions, that is far from clear. The defeat of legislation in a few states that was clearly unconstitutional is not the same as the all-out battle that would occur at the state level if Roe were overturned. Also, it is far from clear that states, and not more local governments, would be setting the agenda on the abortion issue in the absence of a constitutional prohibition. It is certainly possible that smaller political entities would outlaw abortions, or prevent abortion clinics to operate within the town limits, thereby making it difficult, if not impossible, for poor women in those areas to obtain safe and legal abortions.
Neither the war on terror nor any other threat to our society justifies dismantling what makes our society great. Adherence to the rule of law is first on that list. As a result, advocating a Supreme Court that is less interested in upholding the rule of law than permitting the Executive to act unfettered in the prosecution of a war is a dangerous road to travel.

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