August 07, 2006

Rapped for Rapanos?

by PG

Is it safe for me to assume that in Dahlia Lithwick's dippy review of Justice Kennedy's ABA speech, when she says,

Kennedy's inability to find certain, easy answers and his tendency to hold grandiose hopes for the law are fodder for his detractors. This is the Kennedy of Casey, and Lawrence, and Rapanos, and it's the Kennedy that plows up fields of constitutional law and sows seeds of confusion and inscrutable grandeur in their place. This is the Kennedy who drives conservatives nuts with his notion that the courts must fight injustice, regardless of the messiness that ensues. But as he concludes with the charge that our freedom rests on our ability to sell the world on democracy, the crowd is on its feet.
she means Roper, not Rapanos? I know that Chief Justice Roberts was irked by Kennedy's concurrence, which remanded to 6th Circuit with a request for a nexus search, but I was unaware of this being a major source of controversy, if only for the fact that here Kennedy did vote with the conservative majority. In Roper, on the other hand, Kennedy wrote the majority opinion for the liberal side of the Court, and the NRO types have gnashed their teeth over the evolving standards doctrine, claim of national consensus, overturn of Stanford v. Kentucky precedent and judicial shout-out to international law contained therein. I invite the Kennedy-hatas among De Novo readers to comment on which of these was their particular annoyance, or if I left something out.

Notwithstanding Roberts's frustration over the failure to guide lower courts -- which points to less distance between him and Scalia than one might think -- Rapanos hasn't gotten anything like the response Roper did. I seriously doubt that if the Clean Water Act somehow arises in state court, a judge will pull a Parker and argue that Kennedy should be disregarded because he got the Constitution wrong. I've been in at least as Federalist-heavy an atmosphere this summer as I am at law school, but haven't heard much about Rapanos aside from a comparison to Finding Nemo (the dissenting justices' idea that because all water eventually becomes interstate water and therefore under the purview of the Clean Water Act, being similar to the theory that Nemo's jump into a watery toilet will get him to the watery ocean).

August 7, 2006 11:53 PM | TrackBack
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