Conservative women thread a needle on Brett Kavanaugh.
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.