When the Supreme Court’s conservative majority so bungles its interpretation of a federal law that it loses Justice Brett Kavanaugh, you know it has truly erred.
This week the Supreme Court significantly narrowed the scope of the Clean Water Act, limiting the types of waters that can be classified as “wetlands,” and thereby protected from pollution under that act. That this is a good day for would-be polluters and a bad day for those worried about the environment is no surprise. This is a court that is going to consistently make decisions that embrace a skeptical view of the power of executive agencies to protect the environment.
This is a court that is going to consistently make decisions that embrace a skeptical view of the power of executive agencies to protect the environment.
But the court’s ruling isn’t merely pernicious practically for those who care about the environment; it is wrong legally. Judges, as the conservative court is fond of reminding us, are jurists, not lawmakers. Judges should clarify what words and phrases in laws mean, not reinvent the meaning of those words and phrases to accomplish their policy goals. And yet, as Kavanaugh demonstrated in his concurring opinion, that is what the court did this week.
It is unusual for Kavanaugh to break with his conservative colleagues, and the fact that he did so here shows us how truly baseless the court’s reasoning is. Kavanaugh’s concurring opinion explains why the court’s interpretation of the text of the Clean Water Act is fundamentally unmoored from the text itself. To use his words, ”the Court is imposing a restriction nowhere to be found in the text.” Justice Elena Kagan said it better when, in her concurring opinion, she noted “the majority shelves the usual rules of interpretation — reading the text, determining what the words used there mean, and applying that ordinary understanding concurring in judgment even if it conflicts with judges’ policy preferences.”
The Clean Water Act requires that people obtain a permit before dumping a “pollutant,” like dredged or fill material, into the “waters of the United States.” Wetlands that are “adjacent” to waters covered by the act (such as rivers or lakes) are included under the definition of “waters of the United States.” The question before the court in this case was which wetlands are considered to be “adjacent” to bodies of water covered by the act, and therefore protected themselves by the act. While the court’s ultimate decision was unanimous, its reasoning was splintered. A thin five-member majority of the court, defying basic rules of legal interpretation, concluded that “adjacent” means “adjoining.”
As Kavanaugh points out, defining the word “adjacent” as meaning “adjoining” (or having a “continuous surface connection” to covered waters), accomplishes two problematic ends. First, it significantly restricts the number of wetlands that can be covered by the Clean Water Act. Kavanaugh notes that this will have “significant repercussions for water quality and flood control throughout the United States.” (In case we need concrete examples, it is Kavanaugh who reminds us that the court’s decision could have deleterious effects for the Mississippi River’s flood-control project, and the protection of the Chesapeake Bay.)
Second, the court’s reasoning is simply wrong, embarrassingly so, as a matter of statutory interpretation. Adjacent is a broader word that covers not just adjoining waters, but also those “separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.” The court’s reasoning is simply wrong, embarrassingly so, as a matter of statutory interpretation. Kavanaugh tells us exactly why Justice Samuel Alito got it wrong as well: His interpretation goes against the “ordinary meaning” of the word “adjacent” and the “longstanding agency practice” of the Army Corps. Referring to dictionaries for the plain and ordinary meaning of the word adjacent, Kavanaugh notes, “the definitions of ‘adjacent’ are notably explicit that two things need not touch each other in order to be adjacent.” This may not sound like fire and brimstone, but it is. This is Kavanaugh telling his conservative colleagues that they failed at the first and most basic task of statutory interpretation — they ignored the plain and ordinary meaning of the word. “I would stick to the text,” Kavanaugh stated at the end of his concurrence. These six words are nothing less than the judicial version of a grenade. Kagan knows this, and that is why she quoted Kavanaugh throughout in her own concurring opinion, which similarly elucidated the court’s erroneous ways. Kavanaugh is essentially reminding the majority that it had one job, and one job alone, when interpreting a federal law: to follow the text. The majority failed to do so. We will live with the practical and legal consequences of that failure for years to come.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
