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Less justice for environment

Alan Braunholtz

The U.S. Supreme Court upheld Oregon’s assisted suicide law for the terminally ill. The decision split 6-3, with the conservatives on the losing side. Their arguments illustrate their ambivalence to state’s rights and whether the Supreme Court should impose a federal view of moral values. It all depends on what advances their personal beliefs. The conservative judges have no problem overruling a state’s decision, even though two elections overwhelmingly supported the law, to allow doctors to prescribe lethal doses of painkillers. In their view, a whole state’s view of “acceptable limits” -a value judgment – is trumped by the view of an unelected federal official, such as ex-Attorney General John Ashcroft.Right-wing legal types love constructionist thinking, a strict interpretation of laws and the Constitution and not reinterpreting it to match modern life. Just it says what it says. No matter that the law the conservatives on the court wanted to use to allow prosecution of doctors who prescribe these drugs was written only to cover doctors acting as drug pushers for profit. In this case it was OK to stretch the law’s intent to help your personal beliefs. Sounds like activism to me, but the right-wing judicial kind they hate to admit. Activism takes many forms, including not acting and ignoring precedents.Environmentally, state’s rights look good when they undermine federal environmental protection, but not so good when California chooses strict emissions control standards for its cars.The scary detail of Alito’s confirmation is that he is OK to the extreme right-wing groups that black balled Harriet Miers because she wasn’t right wing enough for them. No one reveals much of how they think in a confirmation hearing, but I’m sure the interest groups do their research well. That means if they like him, I won’t.Moral values and abortion issues take all the headlines, but the real litmus test is “are these guys pro business,” often at the expense of the little guy? Our courts offer a limited chance for the poor to challenge the powerful. The powerful don’t like this much. Now that they’ve got the executive and legislative branches of government in their pockets, they’d like to stop the courts from getting in their way.The Supreme Court gets all the headlines, but the circuit courts of appeals decide 99 percent of federal appeals. Here Bush’s choices are revealing. The 1th Circuit Court’s William Pryor used to be Alabama’s attorney general. He defended tobacco companies doggedly even as other states sued them. He tried to weaken the Clean Water Act, Disabilities Act and Family leave Act. He started the Republican Attorney General Association, which solicits money for their campaigns from the corporations these attorneys have the responsibility to police. Similar to buying a police charity bumper sticker to avoid driving tickets. It sounds a lot like a legal protection racket and has raised a lot of money from industries facing lawsuits over consumer complaints, pollution, deaths, etc.The Abramoff scandal revealed how systemic corruption can be in the Republican political system. RAGA’s solicitations and potential conflicts of interest look to fit right in. It looks bad too, which is why they’re economical with the truth. William Pryor claimed he didn’t know of any money from Alabaman companies at his confirmation hearings. He apparently forgot – as documents uncovered by the Washington Post later showed – that he personally phoned tobacco companies for money.We won’t know till later in 2006 how judges Roberts and Alito will change the Supreme Court but it doesn’t look good for the environment. All that came out of Alito’s hearings was his commitment to an open mind, which sounds good until you realize that established precedent means less than his mind’s views on the law.It’s possible we’ll see the power of Congress to write environmental laws stripped by reinterpretation of the commerce clause regarding interstate commerce. This could be curtains for the much of the Clean Water Act and the Endangered Species Act. Also, the door to the court could become closed with stricter rules on who can bring a case. This would be bad for the environment. Often, the law is the only remaining ally and chance for protection the wild animals, clean air and water has. When the executive branch and legislature choose to ignore laws as too restrictive to profits – an interesting legal philosophy if applied to the drug trade, for instance – suing to enforce the law is the one remaining branch of government open to us. Take away this avenue for expressing grievances, and frustration will rise.Telling some one who cares deeply for his own and future generation’s sake about our pristine wild placesthat they’ve got fewer rights to protect these places unless they can prove direct harm is similar to telling an anti-abortion rights protester that other people’s abortions have nothing to do with them. Except that at the moment there are popular laws to protect the environment which our current government chooses not to enforce. Hence the lawsuits.No matter what a judge says at his confirmation hearings, his ideology and politics matter. Why else do we fight so hard over them? It’s what steers their “open” minds in judging precedents and it’s what they fall back on when in new evolving legal situations. Imperial presidential power versus the laws protecting our civil liberties and maintaining an open government in the current war on terrorism are one example.Alan Braunholtz of Vail writes a weekly column for the Daily.


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