Why This Weird Little Frog Should Care About Brett Kavanaugh

If the conservative jurist joins the court by Monday, he will rule on protections for the critically endangered dusky gopher frog.

A dusky gopher frog
A dusky gopher frog (Gerald Herbert / AP)

The battle over Brett Kavanaugh’s Supreme Court nomination engulfed the country this week, as politicians and the press mulled and bickered over allegations of sexual misbehavior and attempted rape against the federal judge.

Yet one of the individuals whose life might soon be transformed by the would-be justice spent the week blissfully ignorant of the scandal. Fox News does not reach his home among the soaring longleaf pines of Mississippi, and honestly, it’s not like he could keep up with a cable bill: He’s a chronic squatter, taking up residence in musty homes that others have abandoned. Even if you got a television in front of him, he would probably react to it the same way he responds to potential predators, by covering his eyes. Though he receives considerable legal attention, he greets all his visitors with a snore—not because he’s sleeping through his trial, but because his distinctive mating call sounds like human snoring.

He is one of about 75 dusky gopher frogs left in the wild. On Monday, the Supreme Court will start its term with a case that could decide whether he and his peers dwindle into extinction. And—most peculiarly for the frog—Brett Kavanaugh’s presence or absence from the bench could prove decisive in how the court rules.

To understand why, it helps to know how we got here—both with the frog and its legal protector, the Endangered Species Act. The dusky gopher frog is among the hundreds of amphibian species that have suffered from a global fungal pandemic and from atrocious habitat loss. Losing one’s home would be a problem for any species, but it has debilitated this one, as they are very finicky. Dusky gopher frogs can breed only around “ephemeral ponds,” pools of water that grow with the winter rains before drying out and vanishing in the summer. Right now, the last known population of frogs lives entirely around one of these ponds in Mississippi.

The U.S. Fish and Wildlife Service has a plan to resuscitate the frog. It wants to restore polluted ponds and construct new ones altogether in pine forests throughout the Deep South. Then it will relocate some frogs to these new pools and protect the land around them.

But this policy has run afoul of Weyerhaeuser, one of the largest timber companies in the world, and the owner of a parcel of Louisiana woodlands that the Fish and Wildlife Service has ruled “critical habitat” for the frogs, even though they don’t live there yet. Weyerhaeuser charges that the Endangered Species Act’s protections for critical habitat do not extend to places where a species does not and cannot currently live. The government, citing six peer-reviewed studies, says that the frog cannot recover and flourish without that parcel of forest.

At stake in the fight is the power of the Endangered Species Act. One of the most sweeping environmental laws on the books in the United States, it lets the government take broad, unilateral action to revive plants and animals from the brink of extinction. It stands out among environmental statutes because the government doesn’t have to pass a cost-benefit test or economic analysis to protect a struggling creature: It can decide that the species’ value alone demands action.

Monday’s case is about how far that action can go. The government sometimes relocates species to new places in order to save them, as it plans to do with the frog. If the court rules against this kind of relocation, the government may lose an important tool to protect species from the widespread, irreversible habitat loss likely to be caused by climate change.

The justices will also rule on what the word habitat means. When the government lists a species as endangered, it must describe its critical habitat, a legal term of art. Weyerhaeuser argues that habitat should have a commonsense definition: It should describe only places where a species currently resides. Environmental advocates and the federal government say that it should have a more scientific one, describing any tract of land essential for the animal’s long-term survival.

This question alone could shape ecology far beyond the pinelands. A group of 15 scientists, including the biologist E. O. Wilson, have argued that Weyerhaeuser’s definition of habitat could imperil the conservation plans of other endangered species, including the Coachella Valley fringe-toed lizard.

But part of what makes the case noteworthy—and worrying for environmentalists—is that the high court agreed to hear from Weyerhaeuser at all. It suggested that bigger issues might be afoot.

“I’m paranoid as hell about this case. The Supreme Court does not take Endangered Species Act cases every year. It’s only once every seven or 10 years, on average,” said William Snape III, an environmental-law professor at American University and the senior counsel for the Center for Biological Diversity. He and the center have filed briefs on the side of the government in the case.

The Supreme Court has largely upheld the power of the Endangered Species Act since its passage in 1973. But the law has remained a bugbear in some Republican circles. At first, when the Court’s justices accepted the case in January, it seemed like the conservatives on the bench might be looking to weaken the act or even consider whether it is unconstitutional.

That outcome only looked more likely when Justice Anthony Kennedy announced his retirement. Kennedy had long served as a swing vote, voting in the majority on every environmental case except one from 1988 to 2018. Environmentalists became even more dour when President Donald Trump announced Brett Kavanaugh as his replacement. As a judge on the D.C. Circuit Court of Appeals, Kavanaugh had frequently and forcefully ruled against them. (“I disagree with Brett Kavanaugh pretty much every time he opens his mouth,” Snape told me.)

But conservatives have not yet pushed to demolish the law, at least in this case. Only one right-wing legal group has asked the Court to rule against the Endangered Species Act’s constitutionality. And in a blog post earlier this year, the conservative legal scholar and Case Western Reserve professor Jonathan Adler said that he expected the justices to rule narrowly “so as to avoid confronting difficult constitutional questions about the scope of federal authority.” He reiterated that opinion in an email to me this week.

And with allegations mounting, it’s hard to imagine Kavanaugh making it to the high court in time to hear the case. Justices must preside over oral argument in a case in order to rule on it, meaning that Kavanaugh must be confirmed by the Senate by 10 a.m. on Monday in order to vote on Weyerhaeuser. If senators miss that deadline, then only eight justices—four liberal, four conservative—would hear the case, and it could split 4–4.

After Kavanaugh or another conservative joins the Court later this year, Chief Justice John Roberts could potentially decide to rehear argument in the case. But the justices would likely do so only if a major substantive issue needed to be addressed. “None of them would ever publicly admit that they want Kavanaugh to hear it, which means they would allow the 4–4 vote to go forward,” Snape said.

“There’s no way to predict it. There are many people looking at the past views of the justices and saying they expect it to be a 4–4 split. But there isn’t any way to know that,” says Sean Hecht, a law professor at UCLA who represented E. O. Wilson and other scientists in this case.

Weyerhaeuser declined to comment on the timing of a confirmation vote for Kavanaugh. “Weyerhaeuser strongly supports species conservation and the Endangered Species Act,” said a company spokesman in a statement. “However, in this case, designation was applied to a tract of land where the species has not been present for decades and where the specific habitat conditions it requires do not exist.” He added that the company currently participates in 10 habitat-conservation plans.

If the court splits 4–4, then the Fifth Circuit Court of Appeals’ ruling for the government would stand. And the frog, in all its ignorance, would gain new frontiers in which to snore.