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Brett Kavanaugh Breaks With Conservative Supreme Court Justices

Newsweek 5/25/2023 Katherine Fung

Associate US Supreme Court Justice Brett Kavanaugh poses for the official photo at the Supreme Court in Washington, DC on October 7, 2022.

Supreme Court Justice Brett Kavanaugh broke with his conservative colleagues on an environmental case, siding with the three liberals on the bench in a concurring opinion instead.

While the Supreme Court's partisan divide has grown sharper in recent years, Kavanaugh, an appointee of former President Donald Trump, has shown himself to be the median justice on the bench, taking a more ideological center position when compared to his staunch conservative colleagues like Samuel Alito and Clarence Thomas.

On Thursday, the Supreme Court released its decision on Sackett v. Environmental Protection Agency (EPA), a case asking the justices to determine whether wetlands are protected under the Clean Water Act.

The Sacketts brought the case against the EPA after federal officials told them they could not build on their residential lot near Priest Lake, Idaho, because the land contained wetlands that were considered "navigable waters" and are covered by the Clean Water Act.

In a unanimous ruling, the court sided with Michael and Chantall Sackett, dramatically narrowing the wetlands regulated by the Clean Water Act and deciding that only those that have a "continuous surface connection" to larger bodies of water would be protected.

Although all the justices agreed that the Sacketts should win the case, they disagreed with the reasoning. Those in the controlling opinion—Justices Neil Gorsuch, Amy Coney Barrett, Samuel Alito, Clarence Thomas and Chief Justice John Roberts—applied a much broader legal standard, which will likely limit the EPA's reach in the future, than Kavanaugh and the court's three liberals.

Brett Kavanaugh Breaks With Conservative Justices In EPA Supreme Court Case

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In Kavanaugh's concurring opinion, he said he "respectfully disagree[d]" with the court's new test, pointing out that it was a departure from "45 years of consistent agency practice, and from this Court's precedents."

"By narrowing the Act's coverage of wetlands to only adjoining wetlands, the Court's new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States," Kavanaugh wrote.

Justice Elena Kagan, a liberal, also quoted Kavanaugh in a separate concurring opinion, writing that "Like Justice Kavanaugh, 'I would stick to the text.'" She was joined by the other two liberals, Justices Sonia Sotomayor and Ketanji Brown Jackson.

However, Alex Badas, an assistant professor at the University of Houston, told Newsweek that the liberal justices were more likely to feel comfortable joining Kavanaugh's concurring opinion because it was less concerned about articulating a theory on agency discretion.

"I think this is one of those technical cases the court must decide to create legal certainty for the lower courts," Badas said. "Yet because decisions involving agency or administrative discretion have potential to impact all facets of the administrative state, the individual justices think it is important to articulate their own unique point of view in hopes of influencing lower courts or agencies."

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