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Justice Ketanji Brown Jackson wades into questioning about murky wetlands dispute as Supreme Court opens new term

Jackson, the first Black woman to serve on the court, is an active questioner in her debut oral argument. The case asks the justices to revisit the scope of the Clean Water Act.
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WASHINGTON — The Supreme Court opened its nine-month term Monday by hearing a conservative challenge to the federal government’s authority to regulate wetlands under a landmark environmental protection law, with Justice Ketanji Brown Jackson asking multiple questions on her first day on the bench.

Jackson, the first Black woman to serve on the court, was quick off the mark, asking a series of questions early on in the nearly two hours of arguments indicating sympathy for maintaining expansive federal authority over wetlands. The conservative majority seemed more skeptical, although there appeared to be no consensus about how to draw a line that would limit federal jurisdiction over sometimes hard-to-define patches of wetland.

Jackson seemed eager to get to the nub of a notoriously complex issue about the scope of the federal Clean Water Act, at one point saying, "Let me try to bring some enlightenment to it." Later on, she politely apologized for asking a follow-up question after a lengthy back-and-forth with a lawyer for Idaho landowners Chantell and Mike Sackett, who want to build on a property the government has deemed to be a wetland.

Jackson's line of questioning was similar to that of the court's two other liberal justices, Elena Kagan and Sonia Sotomayor.

Nominated by President Joe Biden, Jackson was sworn into office over the summer. The oral argument also marked the first time in history that four female justices had sat together on the bench.

Jackson replaced liberal Justice Stephen Breyer, who retired in June. She is one of three liberals on the nine-justice court, which looks set to continue its conservative trajectory in the new term.

Image: Ketanji Brown Jackson, John Roberts
Chief Justice John Roberts escorts Justice Ketanji Brown Jackson after her investiture ceremony at the Supreme Court on Friday.J. Scott Applewhite / AP

The court's conservative majority is skeptical of broad assertions of federal agency power, which could align with the challengers' arguments in Monday's case. In the term that ended in June, the justices issued a major ruling that limited the ability of the Environmental Protection Agency to tackle climate change by regulating carbon emissions under the Clean Air Act.

The same agency is in front of the court this time, with the Clean Water Act, aimed at protecting water quality, now under the microscope.

It also marks the return of the Sacketts to the Supreme Court after the justices ruled in their favor in a case in 2012. Both cases involve the same dispute: the Sacketts’ effort to build a property on land they own in Priest Lake, Idaho, parts of which the EPA has deemed to be a protected wetland, meaning it is subject to federal jurisdiction and building on it requires a permit.

The first case concerned whether the Sacketts could challenge an EPA compliance order in court after they had filled the affected area with gravel and sand without obtaining a permit. The fight, which began in 2007, continued over whether the land was a wetland at all.

The Sacketts turned to the Supreme Court for a second time after the 9th U.S. Circuit Court of Appeals, headquartered in San Francisco, ruled last year in favor of the federal government in its determination that the area did constitute a wetland.

The law about how to define a wetland — of key interest to property developers and other business interests — has long been muddled, and it was not resolved when the Supreme Court decided an earlier case about the issue in 2006. Then, four justices said the Clean Water Act covered land with a “continuous surface connection” to a waterway, but there was not a clear majority. Justice Anthony Kennedy, who provided the fifth vote in the 5-4 ruling, came up with his own test, which said the law provided jurisdiction over a wetland with a “significant nexus” to a waterway. The new case gives the court a chance to revisit the earlier ruling, with some observers believing the majority may embrace the more stringent test the four justices proposed in 2006.

The court appeared no closer to resolving the confusion Monday. Although the conservative justices seemed sympathetic to the Sacketts, the difficulty of coming up with a test to apply nationwide was not lost on them.

"This case is going to be important for wetlands throughout the country, and we have to get it right," said conservative Justice Brett Kavanaugh, who appeared somewhat amenable to a middle-ground solution.

Much of the debate centered on how to define when a wetland is "adjacent" to a navigable waterway and therefore subject to Clean Water Act jurisdiction.

"Adjacency is not the same as touching," Kagan said, echoing a similar remark by Jackson.

Image: Samuel Alito, Elena Kagan, Brett Kavanaugh, Ketanji Brown Jackson
The Supreme Court hears arguments on the opening day of its new term. From left, Justices Samuel Alito, Elena Kagan, Brett Kavanaugh and Ketanji Brown Jackson.Dana Verkouteren / AP

Kavanaugh noted that the government has since 1977 interpreted wetlands jurisdiction to extend beyond certain barriers, including dams, berms and levees.

"So why shouldn't we read 'adjacent' wetland in the statute to mean what EPA has said?" he asked.

Conservative justices appeared concerned about how under the current approach landowners can figure out for themselves in advance whether their land is a wetland, especially as they could face civil or even criminal penalties for building without a permit.

Justice Neil Gorsuch questioned Justice Department lawyer Brian Fletcher about how far from a waterway a wetland could be for the government to lose jurisdiction.

Fletcher said 3 miles and probably 2 miles would be too far for jurisdiction, but he declined to say whether it could extend to 1 mile.

"So, if the federal government doesn't know, how is a person subject to criminal time in federal prison supposed to know?" Gorsuch responded.

Successive presidential administrations have sought to bring clarity to the law, with Democrats generally favoring greater federal power and Republicans, backed by business interests, saying Clean Water Act jurisdiction should be limited.

The Biden administration is finalizing a federal rule, which should be completed by the end of the year, Fletcher told the justices.

The new Supreme Court term includes major cases that could end the consideration of race in college admissions and make it easier for Republicans to restrict voting ahead of the 2024 presidential election. With a solid 6-3 conservative majority in place, Jackson is unlikely to be a key vote in many of the major cases.

For the first time since the Covid pandemic hit Washington in March 2020, members of the public were allowed into the packed courtroom for Monday’s case as the risk-averse court returns somewhat to pre-pandemic procedures, even if the public’s access to the building remains limited.

The justices returned to action after a tumultuous end to the court’s most recent term, in which the conservative majority overturned the landmark Roe v. Wade ruling, which gave federal protection to abortion rights, leading some to question the court’s legitimacy.