Clarence Thomas Advises George Bush to Kindly Not Bring That Trash into His House

Y’all remember kindergarten: when you make a mess, you clean it up. 

For toddlers, it’s about putting all the blocks back in the bin; for the US Government, it’s a little more complicated.  The messes are messier and cleanup is hard and expensive.

But that basic principle is central to the Superfund law, which does two (okay more than two, but we’re focusing on these two) things:

  • Lets the government clean up a polluted mess, and then come after the mess-maker in court for the costs.
  • Lets other people voluntarily clean a polluted mess they either find or help make, and then come after another mess-maker in court for its rightful share of the costs.

But what if the (other) mess-maker is the government itself

Well, the Bush administration argued the Feds should get a free pass from the threat of getting sued for the messes it makes (and doesn’t clean up).  The government’s argument was basically “what if the law didn’t say what it did — what if that whole second part was just a dream?”  It went to the Supreme Court, where 8 other justices took one quick look at the “dream” thing, handed a baseball bat to Clarence Thomas, and asked if he would be willing to do the honors, and swat that junk over the left field wall.  He obliged.

The effect of the Bush-administration argument would have been this: if only the government can sue, and the government causes pollution, then the government would have to sue itself to get a cleanup started.  Given this administration’s regard for environmental protections generally, that would basically never happen.   

The symbolism of having Thomas write the opinion is intriguing.  Any justice could have done it; they were unanimous, 9-0, with nobody writing a separate concurrence, dissent, or any indication that some justices wouldn’t be appropriate to write for the court.  But Thomas, appointed by the President’s father, is the Bush administration’s ideological ally, and he rejected their request directly on the merits.  (This was no Marbury-Madison procedural dodge, no sleight-of-hand where the court slyly sets a precedent or sends a message while refusing to reach the issue on technical grounds.)  This, along with Massachusetts v. EPA, was an undisguised repudiation of the administration’s broader legal theory that it should be able to disregard environmental laws for its own convenience.  That Clarence Thomas was willing to write it must make the White House seem a little more lonely than before.

This administration is losing court cases: indefinite detention of suspects without trial at Gitmo was also smacked down, just yesterday, at the appellate level, and that will likely soon make it to the top court as well.  Considering past rulings and the poor showing of the administration’s response to the terrorist threat in general, we wonder if they’ll even go for cert to the Supremes on that one.  They’ve often made policy arguments in legal cases; here they’re short even on policy justifications. 

If it hobbles, and quacks, like a lame duck, it must be….

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