Supreme Court opens session short-handed
Case involving endangered dusky gopher frog splits justices, 4-4
WASHINGTON – The Supreme Court began its 2018 term Monday shorthanded while the White House and Senate tangle over sexual abuse allegations against Brett Kavanaugh. Within minutes, the difficulty of having just eight justices was apparent.
The court’s first case focused on an endangered frog – not the sort of issue that usually divides the justices along ideological lines. But the more liberal justices sided with the government – and the frog – while the conservatives aligned with a corporation whose land is at stake.
That raised the specter of a potential 4-4 split, exactly what the court seeks to avoid when it’s short one justice. After Associate Justice Antonin Scalia’s death in 2016, the court had only eight justices for 14 months and deadlocked five times, including on major immigration and workers’ rights cases.
The court’s docket for the new term does not include major cases on divisive issues, such as abortion or voting rights.
But bigger cases are in the pipeline and cannot be headed off indefinitely. Issues on their way include partisan gerrymandering, LGBT employment rights and deportation protection for undocumented immigrants brought to the USA as children.
The plight of the dusky gopher frog wouldn’t seem to rise to that level. Nearly extinct in Mississippi because breeding requires ephemeral ponds that alternate between wet and dry, the tiny frogs may be destined for Louisiana if the U.S. Fish and Wildlife Service has its way.
A Louisiana timber company challenged the designation of more than 1,500 acres of forested land in St. Tammany Parish as “critical habitat” for the frog. There are no dusky gopher frogs there now, and the designation could reduce the land’s value by up to $33 million if it cannot be developed, according to Timothy Bishop, the lawyer for Weyerhaeuser Co.
When the frog was listed as endangered in 2001, its population had been reduced to approximately 100 adult frogs in a single pond in Mississippi. The government designated four Mississippi counties as potential habitat, later adding the disputed parcel in Louisiana, where the frogs existed until 1965.
Associate Justice Elena Kagan said the Endangered Species Act could not have preferred extinction to development of the new habitat, even if modifications are required.
“It is a counterintuitive result that the statute would prefer extinction of the species to the designation of an area which requires only certain reasonable improvements in order to support the species,” she said.
Chief Justice John Roberts said the key is how much the land must be altered and at whose cost.
Otherwise, he said, the government could require hot air greenhouses in Nome, Alaska.
“If you have the ephemeral ponds in Alaska, you could build a giant greenhouse and plant the long-leaf pines, and the frog could live there,” he said. “In other words, there has to be presumably some limit on what restoration you would say is required.”