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Environmental Law in the Supreme Court: Highlights From the Marshall Papers

October 1993

Citation: 23 ELR 10606

Issue: 10

Author: Robert V. Percival

Editors' Summary: Earlier this year, the Library of Congress released the papers of the late Supreme Court Justice Thurgood Marshall. In so doing, it provided scholars with access to a remarkable record of the Court's inner-workings. Among the Marshall papers is an extensive collection of letters, memoranda, and draft opinions that the Justices exchanged on some of the most important cases of the last quarter century.

Justice Marshall served on the Court from 1967 until 1991. During that period, Congress passed all of the major federal environmental statutes and environmental regulation mushroomed. As a result, the Marshall papers reveal how the Court reached decisions that have shaped modern environmental law. The author, a former law clerk to former Justice Byron White and an associate professor of law at the University of Maryland, begins by describing the history of the Court's treatment of environmental disputes. He then discusses the steps the Justices take in deciding whether to accept cases for review; in reaching decisions on the merits in cases they do review; and in drafting majority, concurring, and dissenting opinions. Throughout the Article, the author furnishes examples from some of the most famous environmental cases that the Court has decided. He describes how the Court sometimes reached final decisions only after Justices switched their votes, demonstrating that historic decisions in some environmental cases were uncertain until the last minute and sometimes depended on factors not revealed in the Court's opinions. He concludes that the resulting portrait of the Court reveals the Justices' personal and intellectual integrity and shows that the Court is an institution that functions extraordinarily well.

Prof. Percival is Associate Professor of Law, Robert Stanton Scholar, and Director of the Environmental Law Program at the University of Maryland School of Law. He served as a law clerk to Justice Byron White during the Court's 1979-80 Term. Prof. Percival wishes to express his appreciation to the staff of the Manuscript Division of the Library of Congress and to Lauren McKeen for outstanding research assistance.

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