Aggressively Defending My Clients Since 1990


On Behalf of | Apr 8, 2022 | Firm News

Through this method of questioning, answering… questioning, answering… we seek to develop in you the ability to analyze… that vast complex of facts that constitute… the relationships of members within a given society.  You come in here with a skull full of mush… and you leave thinking like a lawyer.  Prof. Kingsfield, The Paper Chase (1973)

Law students are taught the meaning of law in law school by analyzing words in court opinions.  As law school students read the words of court opinions, they are asked verbal questions when called upon in class to learn the meaning of a court opinion.  By the give and take of questioning, law students are taught early on that words are power.

The words of a court opinion express the thinking of a court.  The words of a opinion define the parameters of what the court is deciding.  Supreme Court Justice Amy Coney Barrett has said Americans should She urged Americans to “read the opinion” of the court and consider the court’s reasoning before making judgments about the outcome.  That way Justice Barrett said, people will know the court is not imposing a “policy result” in deciding a case.  With divisive Supreme Court rulings coming, Barrett says: ‘Read the opinion’  (Associated Press 4.5.22),  The flip side of that is that if the court were to render an opinion with no words, there would be no thinking by the court.  Americans could not read the opinion of the court.

Recently, the Supreme Court issued a 5–4 decision reviving a Trump-era ruling that radically limited the ability of states and tribes to restrict projects, like pipelines, that will damage the environment. With their decision, the majority upended decades of settled law recognizing states’ authority to protect their own waters without bothering to issue a single sentence of reasoning.

The catch?  The Court issued no opinion in making this decision.  Supreme Court Allows Clean Water Act Rule to Stay in Effect (Council of State Governments, April 7, 2022),

This opinionless five-justice majority left Justice Elena Kagan to issue a bewildered dissent, joined by the chief justice along with Justices Stephen Breyer and Sonia Sotomayor.

Justice Kagan pointed out that, by law, the Supreme Court can issue this kind of stay “ in extraordinary circumstances,” when there is “an exceptional need for immediate relief,” including evidence of “irreparable harm.” Here, the Trump rule’s defenders insisted that states were obstructing vital energy projects. But, Justice Kagan wrote, they “have not identified a single project that a state has obstructed” under the district court’s decision or “cited a single project that the court’s ruling threatens.” Put simply, they failed to explain how returning to the pre-Trump regime—“which existed for 50 years”—would hurt them at all.Then JusticeKagan spelled out what the majority is really doing here: making policy to restore the Trump administration’s stranglehold on the Clean Water Act. “That renders the Court’s emergency docket not for emergencies at all,” she concluded. “The docket becomes only another place for merits determinations—except made without full briefing and argument.”​

Someone needs to tell Justice Amy Coney Barrett how the court is not thinking when it issues opinions without words.