Recent articles in the National Law Journal, Daily Jorunal, and New York Times, highlight the Roberts Court’s record in environmental cases during the October 2008 term. All three articles note that the side favored by environmentalist groups lost in all five environmental cases heard by the Supreme Court this past term. This fact has also been the subject of discussion on the Environmental Law Profs e-mail listserv. 0-5 is certainly a poor record, but what does it mean?
First, it’s important to put the five cases in context. These are just five cases, and results from just a single term. It’s also notable that only one of the five cases was decided 5-4, and four of the five cases came from — and reversed — the U.S. Court of Appeals for the Ninth Circuit. This latter fact could just as easily suggest that the Ninth Circuit is environmentally extreme as that the Supreme Court is hostile to environmental protection or particularly “pro-business” in environmental cases.
The Roberts Court’s record in environmental cases is but one piece of the larger narrative that the Court has become significantly more conservative with the confirmations of Chief Justice Roberts and Justice Alito. I’ve addressed this claim at length before (most recently here), so I won’t dwell on it at length. I will note, however, that there is no evidence — not even from this term — that Roberts and Alito have made the Court particularly more conservative or pro-business on environmental issues.
The NYT story quotes Temple law prof Amy Sinden saying that the cases this term “could all have come out very differently if we still had O