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

Robert V. Percival

Editor's 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.

[23 ELR 10606]

Savvy environmental lawyers know that the vow to take a case "all the way to the Supreme Court" usually is a long-shot strategy. Yet when the Court does agree to review an environmental case, its decision can have momentous consequences. Decisions of the Supreme Court interpreting the environmental statutes and articulating principles of constitutional and administrative law have had a profound effect on environmental regulation during its quarter century of phenomenal growth. Yet the Court's importance in the environmental field still is not well-appreciated, as reflected in the peculiar recent claim that Interior Secretary Bruce Babbitt was too valuable to environmentalists to be nominated to the Court.¹

One factor contributing to misunderstanding about the Court is the extraordinary secrecy that traditionally has surrounded its operations. This veil of secrecy was lifted earlier this year when the Library of Congress released the papers of the late Justice Thurgood Marshall.² The Marshall papers provide an unprecedented opportunity for the public to examine the decisionmaking processes of the Supreme Court. They contain a remarkably complete record of the written interchanges among the Justices during a period spanning virtually the entire history of contemporary environmental law.

This Article reviews highlights of what the Marshall papers reveal about how environmental cases have been handled in the Supreme Court.³ It begins by sketching a brief history of the Supreme Court's involvement in environmental [23 ELR 10607] disputes. After considering how the Court selects the cases it will hear, the bulk of the Article focuses on the process used by the Court to decide cases on the merits. It examines the Justices' frequent battles over how broadly or how narrowly to decide cases, and it illustrates how difficult it can be for the Court to muster a majority for a particular rationale. The Article reveals that in several environmental cases the ultimate result changed after the initial vote on the merits as Justices switched their votes during the opinion-drafting process. After describing what happens after the Court announces its decisions, the Article concludes by assessing what the Marshall papers show about how well the Court functions as an institution.

The Supreme Court and the Environment During the Marshall Years

Justice Marshall served on the Supreme Court during a period when environmental law experienced extraordinary growth. He was appointed to the Court in 1967, just as the national environmental movement was rising to prominence, and served on the Court during the next 24 years, a period when Congress enacted all the major federal environmental statutes, and environmental regulation became a growth industry. When Justice Marshall retired in 1991, the judiciary had become less sympathetic to environmental concerns after successive Presidents had tried to reign in regulation through appointments of conservative judges and active intervention in the rulemaking process.

Although Justice Marshall joined the Court before the explosion of federal environmental legislation in the 1970s, the Court then was no stranger to environmental controversies. Beginning in the early days of the twentieth century, the Court repeatedly was asked to umpire interstate pollution disputes under the Court's original jurisdiction over cases involving states.⁴ The Court made no secret of its distaste for such complex disputes,⁵ and as a result it eventually embraced the notion that the new environmental statutes preempted federal common law.⁶

But the growth of public concern for the environment brought a new wave of environmental cases to the Court's doors in the 1970s. Encouraged by decisions expanding citizen access to the courts,⁷ both industry and environmental interests increasingly sought judicial review of agency decisions. As agencies struggled to implement the new regulatory programs, the Supreme Court was asked to review more lower court decisions interpreting the new environmental laws or umpiring challenges to newly issued regulations. As a result, environmental disputes spawned some of the most significant administrative law decisions as appellate courts first encouraged more careful judicial scrutiny of agency decisions and then later instructed the lower courts to show greater deference to agency actions.⁸

During his years on the Supreme Court, Justice Marshall served with a total of 17 other Justices (see Figure 1). He began his service on the Court just two years before the retirement of Chief Justice Earl Warren. While environmental cases had rarely commanded the Warren Court's attention, they began to appear on the Court's docket with increasing frequency after Warren retired in 1969 and Warren Burger replaced him as Chief Justice. The membership of the Court then changed rapidly with the resignation of Abe Fortas in 1969 and the retirement of Hugo Black and John Marshall Harlan in 1971. Harry Blackmun replaced Fortas in 1970, after the Senate rejected President Nixon's first two choices for the seat. Lewis Powell and William Rehnquist replaced Black and Harlan in 1971.

Figure 1, U.S. SUPREME COURT JUSTICS 1967-1993

[SEE ILLUSTRATION IN ORIGINAL]

Because President Nixon's appointments were designed to redress the Warren Court's widely criticized solicitude for the rights of criminal defendants, they were thought to have shifted the Court into a more conservative direction at the very time unprecedented public concern for the environment was generating a flood of new federal regulatory legislation. Justice Lewis Powell had been extremely critical of the environmental and consumer movements before he joined the Court. In a confidential memorandum Powell wrote for the U.S. Chamber of Commerce in August 1971, he declared that "the American economic system is under broad attack"⁹ and decried "the stampedes by politicians to support almost any legislation related to 'consumerism' or the 'environment.'"¹⁰ Noting that "the judiciary may be the most important instrument for social, economic and political change," Powell proposed that business groups should launch an aggressive counterattack in the courts, in the media, and on campus, borrowing some of the tactics used by the public interest movement.¹¹

When William O. Douglas, the Justice most closely identified with environmental concerns, retired in 1975, he used environmental imagery to thank his fellow Justices. Likening his service on the Court to a canoe trip in the wilderness, Justice Douglas noted that he and his Brethren had been "strangers at the start but warm and fast friends at the end."¹² Noting that similar "journeys will be made by those who follow us," he expressed the hope "that they will leave these wilderness water courses as pure and unpolluted as we left those which we traversed."¹³ Justice Douglas was replaced on the Court by John Paul Stevens, whom President Ford appointed in 1975.

[23 ELR 10608]

During the remaining 11 years of the Burger Court, the only change in membership on the Court was President Reagan's appointment of Sandra Day O'Connor to replace retiring Justice Potter Stewart in 1981. In 1986, Chief Justice Burger retired, and President Reagan appointed Justice Rehnquist to be the new Chief Justice and Antonin Scalia to be an Associate Justice. Anthony Kennedy succeeded Lewis Powell in 1988, and David Souter replaced William Brennan in 1990.

In addition to providing information about the Court's deliberations in the cases before it, the notes exchanged by the Justices furnish fleeting glimpses of the human side of their personalities. After two years on the Court, Justice Rehnquist complained that "the practice which each of us appears to follow at the close of a day of oral argument — plodding back to his own individual salt mine — is bad for morale."¹⁴ He proposed holding a post-argument coffee hour in one of the conference rooms to "give law clerks a chance to get acquainted with the Justice for whom they don't work, and vice versa" as well as an annual "mini-gridiron show" where the law clerks could perform "parody or satire on the Court."¹⁵ Responding to these suggestions, Chief Justice Burger opined that "[t]here just isn't time" to join law clerks for a coffee hour. He added that "[b]ecause of last year's 'leaks' I was not in the mood to see law clerks generally, and if we have any more of last year's business there will be minimal interest."¹⁶

Concurring with a proposal by Justice White to expand the staff of the Court to cope with its increasing workload, Justice Powell complained: "I am not able — with the limited staff presently available — to discharge my responsibilities with the same care and thoroughness which major law firms (with infinitely greater resources) customarily devote to major problems."¹⁷ Justice Douglas, however, the rugged individualist, saw "no need for any more help than I already have."¹⁸

Environmental concerns occasionally penetrated the Court's marble halls. During the "energy crisis" spawned by the first Arab oil embargo in 1973, Chief Justice Burger circulated a memorandum outlining the steps being taken to conserve energy at the Court. These included reducing outside lighting by 50 percent, rolling back thermostats at the Court to 68 degrees (while noting that seven of the Justices could use the fireplaces in their chambers for heat), and encouraging Court employees to drive no faster than 50 miles per hour.¹⁹ In response to a news report that the Court had stopped using bottled water because high levels of contaminants were found in it, Justice Douglas reported to his colleagues in 1974 that an acquaintance from Scottsdale, Arizona, had offered to give the Court a free supply of pure Arizona spring water.²⁰ More recently, concerns shifted to the hazards of passive cigarette smoke. In 1980, one of the Justices circulated a copy of an article from Science magazine entitled Indoor Air Pollution, Tobacco Smoke, and Public Health. The article concluded that passive cigarette smoke "presents a serious risk to the health of nonsmokers" that "deserves as much attention as outdoor pollution."²¹

Decisions to Review Environmental Cases

Since the 1920s, the Supreme Court has enjoyed broad discretion in deciding which cases to hear. Aside from the rare cases that fall within its original jurisdiction, virtually all of the cases on the Court's docket involve requests to review decisions by lower courts. The rapid growth of federal legislation and the expansion of the federal judiciary have greatly increased the pool of decisions presented to the Court for review. Between 1967 and 1992, the number of cases the Court was asked to review each year nearly doubled from less than 3,000 to more than 5,800.²² Concerned about the impact of new legislation on the workload of the courts, Chief Justice Burger proposed in 1972 that "every piece of legislation creating new cases be accompanied by a 'court impact statement.'"²³ Modeled on the [23 ELR 10609] National Environmental Policy Act's²⁴ (NEPA's) environmental impact statement (EIS) requirement, the Chief Justice's proposal would have required Congress to prepare "an estimate of how many more judges and supporting personnel will be needed to handle the new cases" spawned by proposed legislation.²⁵

Despite the substantial growth in the number of cases presented to it for review, the Supreme Court has substantially reduced the number of cases it agrees to hear each year. While it accepted 255 cases for review during its 1967-68 Term, the Court agreed to hear only 120 cases during its 1991-92 Term. The growth in the Court's docket, coupled with the reduction in the number of cases the Court agrees to review, has sharply reduced the chances that the Court will agree to hear any given case. The percentage of cases presented to it for review that the Court has agreed to hear fell from 8.7 percent during the 1967-68 Term to 2.1 percent in the 1991-92 Term.²⁶

Table 1 and Figure 2 provide a statistical overview of the Supreme Court's treatment of requests for review in environmental cases during the period between its 1970-71 and 1991-92 Terms.²⁷ The data show a sharp rise in the early 1970s in both the number of environmental cases presented to the Court for review and the number the Court decided. This is not surprising because it occurred at a time when considerable new federal environmental legislation was enacted. As environmental law began to mature in the late 1970s, the data show a decline in environmental cases followed by year-to-year variation in the number of such cases brought to the Court. After a slight increase in the number of environmental cases the Court agreed to review during the early 1980s, there is a sharp drop at the end of the decade followed by a rebound in the early 1990s.

TABLE 1. SUPREME COURT ACTION ON REQUESTS OR REVIEW IN ENVIRONMENTAL CASES 1970-1991 TERMS

Supreme % Granted

Court Review Summary Review or Summary

Terms Granted Action Denied Action

1970 & 1971 8 0 16 33.3%

1972 & 1973 8 3 30 26.8%

1974 & 1975 18 2 59 25.3%

1976 & 1977 17 6 41 35.9%

1978 & 1979 10 4 42 25.0%

1980 & 1981 12 6 72 20.0%

1982 & 1983 16 2 33 35.3%

1984 & 1985 16 1 70 19.5%

1986 & 1987 5 10 37 28.8%

1988 & 1989 5 1 81 6.9%

1990 & 1991 14 3 61 21.8%

SOURCE: U.S. Law Week

Figure 2, SUPREME COURT ACTION ON REQUESTS FOR REVIEW IN ENVIRONMENTAL CASES 1970-1991

[SEE ILLUSTRATION IN ORIGINAL]

While environmental cases have a better statistical chance of being accepted for review today than cases raising other issues, the Court now hears a smaller percentage of the environmental cases presented to it than in the mid-1970s. This is consistent with the Supreme Court's recent practice of hearing fewer cases. It also may reflect the greater novelty of legal issues that arise after new legislation is enacted. Once the Court fleshed out many of the details concerning how the environmental laws should be interpreted, the number of environmental cases reviewed by the Court peaked in the mid-1970s. As environmental regulation becomes even more pervasive, this trend may be reversed, though it is too early to make confident predictions.

To assist them in deciding which cases to review, most of the Justices assign their law clerks the task of summarizing the issues in each case in which the Court's review is sought. Beginning with the Court's 1972-73 Term, five Justices (Chief Justice Burger and Justices White, Blackmun, Powell, and Rehnquist) agreed to divide the task of preparing memos on the various petitions for review among their law clerks as a pool. This arrangement is known as the "cert pool" because most requests for review come to the Court in the form of petitions for a writ of certiorari. It saves the law clerks considerable time and permits them to write more thorough memos, which are then circulated to each of the Justices in the "pool." Because Justice Marshall was not a member of the cert pool, his papers do not contain copies of the pool memoranda, which generally were more extensive than the brief memos prepared by Justice Marshall's clerks when reviewing cert petitions.

When the Justices review cert petitions, any Justice who wishes to have a case considered for review can put it on the "discuss list" for discussing and voting in conference. If a case is not placed on the discuss list by any Justice, the case is not discussed and review is denied automatically. In deciding whether or not to hear a case, the Supreme Court follows what has been called the "Rule of Four."²⁸ By long-standing, unwritten tradition, review is granted in any case in which four or more of the nine Justices vote to grant review. This permits a four-person minority to compel the Court to hear a case even if five Justices of the Court deem it unworthy of review. While Justices are more likely to vote in favor of reviewing cases that they believe to be wrongly decided, a four-Justice minority may be less inclined to force the Court to hear a case if it is convinced that the other five Justices will disagree with them on the merits.

In the absence of four or more votes to hear a case, the Court usually denies review without providing any explanation for its decision and without revealing whether any Justice voted to grant review. During the last several decades, all the Justices except Justice Stevens occasionally recorded their dissent when decisions to deny review were announced.²⁹ In some of these instances, Justices issued dissenting opinions explaining why they believed that the Court should have agreed to hear a case. In such cases, the announcement of a decision to deny review was postponed while draft dissents were prepared and circulated among the Justices.

The Marshall papers reveal that draft dissents from a denial of review occasionally persuade other Justices to vote to hear a case. For example, in December 1972, Justice Douglas circulated a draft dissent from a denial of review in a case³⁰ in which the Third Circuit reversed a criminal conviction of a polluter under the Refuse Act.³¹ The Court subsequently agreed to hear the case and reversed the Third Circuit's decision.³² The Court's important 1981 decision [23 ELR 10610] holding that the Clean Water Act³³ has preempted the federal common law of nuisance³⁴ was reached more than a year after Justice White circulated a draft dissent from a decision denying review. In his draft dissent, Justice White stated that he had not reached any firm conclusion on the merits of the preemption claim. But he argued that "there is substantial doubt as to whether Congress intended that inexpert federal courts, guided by principles of common-law nuisance and maxims of equity jurisprudence, could impose environmental duties stricter than those adopted through democratic processes and developed by supposedly expert federal and state agencies."³⁵ Justices Stewart and Powell eventually joined Justice White's dissent, providing the crucial additional votes for the Court to hear the case.

Justice White also succeeded in convincing the Court to hear U.S. Environmental Protection Agency v. National Crushed Stone Ass'n,³⁶ which involved the question whether economic hardship required a variance from Clean Water Act effluent standards. Arguing that the Fourth Circuit's decision in favor of the industry position "affects EPA's ability to enforce water pollution control laws," Justice White circulated a dissent in January 1980 from the Court's initial decision to deny review.³⁷ The Court subsequently granted review and upheld the U.S. Environmental Protection Agency's (EPA's) position that economic ability to meet the standards need not be considered in ruling on requests for variances.

Because the very process of drafting a dissent from a denial of review postpones the denial, it may buy time for subsequent events to make the case for review more compelling. For example, another lower court may reach a conflicting interpretation of the law, making the Supreme Court particularly likely to grant review. The Marshall papers indicate that the Supreme Court initially voted to deny review in the 1987 Gwaltney case³⁸ concerning whether citizen suits could be brought for past violations of the Clean Water Act. Shortly after Justice White circulated a draft dissent from the denial of review, arguing that the Court should hear the case because of an apparent conflict between the Fourth Circuit's decision and a case previously decided by the Fifth Circuit,³⁹ the First Circuit adopted yet a third interpretation of the citizen suit provision.⁴⁰ This new conflict apparently proved decisive, as the Court then voted to hear Gwaltney.

In early 1971, at a time of extraordinary public concern for the environment, the Court held oral argument on whether or not to hear an environmental case as an original action.⁴¹ The state of Ohio sought leave to file an original action asking the Supreme Court to enjoin chemical companies from discharging mercury into Lake Erie and to require the cleanup of prior discharges under the federal common law of nuisance. On the day of the oral argument, January 18, 1971, Chief Justice Burger circulated a memorandum stating that while he had not made up his mind, "it will take a large showing for me to get ourselves engaged in this kind of litigation" because the "50 states and range of pollution problems give me pause."⁴² The Chief Justice suggested that if leave were granted "we should consider appointing not one but three Special Masters, at least one of whom should be a scientist with background in the subject matter…."⁴³ Despite a fierce dissent from Justice Douglas, the Court ultimately denied the motion in an opinion by Justice Harlan, who noted that the Court had "found even the simplest sort of interstate pollution case an extremely awkward vehicle to manage."⁴⁴ The opinion emphasized that the Court's decision should not be viewed as denigrating environmental concerns. "Reversing the increasing contamination of our environment is manifestly a matter of fundamental import and utmost urgency."⁴⁵ At the suggestion of Justice Black, Justice Harlan also amended the last sentence of the opinion to clarify that the state was free to file the case elsewhere.

In another case a year later, the Court, after hearing oral argument, granted Vermont's motion for leave to file a complaint against a New York paper mill responsible for interstate water pollution.⁴⁶ The Court appointed a special master, who encouraged the parties to reach a settlement. However, in 1974, the Court refused to approve a consent decree the parties had negotiated because the Court did not want to assume responsibility for supervising compliance.⁴⁷

Summary Reversals

Occasionally, the Justices will decide that a lower court's decision is so clearly wrong that the Court should issue a per curiam (unsigned) opinion reversing it summarily, without scheduling briefing on the merits and without hearing oral argument. This practice was more common in the early 1970s, when the Court typically used it to dispose of a score of cases a year.⁴⁸ By the late 1980s, the Court decided less than 10 cases per year in this manner.⁴⁹

One of the most surprising revelations in the Marshall papers is that the Court almost summarily reversed Tennessee [23 ELR 10611] Valley Authority v. Hill,⁵⁰ the famous "snail darter" case, in which an appellate court had blocked completion of the Tellico Dam to protect an endangered species of fish. When the Court initially met to consider whether to hear the case during the week of September 26, 1977, five of the Justices (Chief Justice Burger and Justices Rehnquist, White, Powell, and Blackmun) favored reversal, while the other four (Justices Brennan, Stewart, Marshall, and Stevens) voted not to review the case. Justice Blackmun was the only one of the five Justices favoring reversal who wanted to hear oral argument, but he wanted to lift the injunction and permit construction of the dam to continue while the Court considered the case.⁵¹

On October 5, 1977, Justice Rehnquist circulated a six-page draft per curiam opinion summarily reversing the appellate court and holding that the trial court had not abused its discretion by refusing to issue an injunction to prevent destruction of the endangered species.⁵² One week later, Justice Stewart, one of the four Justices who had voted not to hear the case, circulated a draft dissent arguing that "injunctive relief is the only means available to forestall the precise irreparable harm the [Endangered Species] Act was designed to prevent — the destruction of the critical habitat of an endangered species."⁵³ While noting that "[s]ome may wonder at a system of values that puts the survival of a three-inch fish ahead of the completion of a multi-million dollar public works project," Justice Stewart argued that it was up to Congress and not the courts to reorder such priorities.⁵⁴ On the next day, Justices Brennan and Marshall, who also had voted not to hear the case, agreed to join Justice Stewart's dissent. Justice Rehnquist then added two footnotes to his draft per curiam reversal to respond to Justice Stewart's dissent. On October 20, 1977, Justice Stevens, the fourth Justice who had voted to deny review, circulated a blistering, three-paragraph dissent accusing the Court majority of "unprecedented" and "lawless" action.⁵⁵

The other Justices who favored reversal wanted to rely on different grounds than Justice Rehnquist. Justice Powell circulated a four-page draft opinion concurring in the result of the per curiam reversal, but basing his decision on the conclusion that the Endangered Species Act (ESA)⁵⁶ did not apply retroactively to projects already under construction when the ESA was enacted.⁵⁷ In a letter to Justice Powell, Chief Justice Burger argued that continued congressional appropriations for the Tellico Dam should be viewed as having amended the ESA.⁵⁸ While arguing that it would be preferable to have full briefing and oral argument, Justice Blackmun agreed to join Justice Powell's concurrence in the summary reversal because "[w]ith the Court split evenly, a vote on my part merely to grant [review] would create nothing but confusion."⁵⁹

Justice Brennan then circulated a lengthy memorandum attacking the rationales of the opinions drafted by Justices Rehnquist and Powell. While noting that he was "still firmly of the view that we should deny this petition," Justice Brennan argued that "[i]n any event the wealth of writing surely proves that a summary disposition is most inappropriate."⁶⁰ Justice Marshall's files contain a note from one of his law clerks recommending that he endorse Justice Blackmun's call for oral argument because "the summary procedure being followed seems inappropriate, given the divergence of views on the case."⁶¹ The clerk also observed that "some of the votes against the snail darters might change in light of briefing and argument."⁶² This observation proved prescient. On November 14, 1977, the Court agreed to hear oral argument, and after the case was argued on April 18, 1978, voted 6-3 to affirm. Chief Justice Burger and Justice White joined Justices Brennan, Stewart, Marshall, and Stevens in voting to uphold the injunction against completion of the dam.⁶³ Now, the Court customarily requires six Justices to vote for summary reversal before it will issue a per curiam decision reversing a lower court without oral argument.⁶⁴

In another environmental case, Justice Rehnquist was more successful in persuading the Court to summarily reverse a lower court decision. The Marshall papers reveal that Justice Rehnquist was the author of the Court's 1980 per curiam opinion in Strycker's Bay Neighborhood Council, Inc. v. Karlen,⁶⁵ which summarily reversed a decision requiring the Department of Housing and Urban Development to reevaluate alternatives to a low-income housing project to comply with NEPA. The papers show that five of the other Justices joined Justice Rehnquist's opinion the day after it was circulated; two others joined on the next day.⁶⁶ The Court issued the 8-1 [23 ELR 10612] decision over Justice Marshall's dissent, less than eight weeks after Justice Rehnquist circulated his initial draft per curiam opinion.

Oral Argument

After the Supreme Court has agreed to grant plenary review to a case, the parties prepare briefs on the merits and oral argument is held. Until the early 1970s, the Court generally allotted two hours for oral argument of each case granted plenary review, with one hour allotted to each side. After experimenting with a "summary docket" that provided each side only one-half hour for argument of less complicated cases, the Justices discovered that the quality of arguments improved when lawyers were forced to make their arguments more concise.⁶⁷ Thus, the Justices reduced the time allotted for oral argument of all cases to one hour. This permitted the Court to hear 12 cases per week in three days of argument, instead of eight cases in four. The change facilitated an increase in the number of cases granted plenary review during the 1970s and early 1980s.⁶⁸

While oral argument rarely changes the outcome of cases, the Justices report that each year there are a few cases where it makes a significant difference.⁶⁹ Occasionally, surprises surface at oral argument, usually because of last minute developments that may affect the outcome of a case. Just before oral argument in one of the first environmental cases of the 1970s, the Overton Park decision,⁷⁰ the Solicitor General presented the lawyer representing the citizens group with certificates from the Secretary of Transportation certifying that the Secretary had made statutorily required findings that "no feasible and prudent alternative" existed to building a highway through a park.⁷¹ In an opinion by Justice Marshall, the Court ultimately held that while formal findings were not required, the kind of litigation affidavits presented by the government were inadequate for purposes of judicial review.⁷² This decision played a major role in opening up citizen access to the courts to ensure compliance with what Justice Marshall described as "legislation designed to curb the accelerating destruction of our country's natural beauty."⁷³

In a case argued on the day after President Reagan was sworn into office, an attorney for the textile industry informed the Justices at oral argument that the Occupational Safety and Health Administration (OSHA) had just rescinded its carcinogen policy, making it necessary for the Court to remand the case to the agency for reconsideration.⁷⁴ When the Justices asked why they had not been informed of the change before oral argument, the attorney stated that he had "just learned about it last night."⁷⁵ The Court then requested post-argument submissions on the effect of the new OSHA policy, but it ultimately refused the new administration's request to remand the case, as described in more detail below.⁷⁶

The Conference Vote and Assignment of Opinions

Following oral argument, the Justices assemble in conference to discuss the cases and to vote on the merits. What transpires behind closed doors at conference, with only the nine Justices present, remains the most secretive aspect of the Court's work. While the Marshall papers frequently indicate how the Justices voted at conference, they provide few indications of what the Justices said when they met to discuss the cases in private. Some Justices have indicated that in recent years substantially less discussion and debate occurs at conference than in the earlier days of the Court when the conferences typically lasted much longer.⁷⁷ Written exchanges between the Justices commenting on draft opinions appear to be more important today.

By tradition, the Chief Justice or the next most senior Justice who voted with the majority assigns to one Justice the task of preparing a draft majority opinion. The Chief or the most senior Justice who voted with any minority in a case may assign the task of preparing a draft dissent.

Some observers of the Court believed that Chief Justice Burger voted with the majority in some cases in order to be able to assign the opinion rather than letting the task fall to the far more liberal Justice Brennan, the most senior Justice on the Court during most of Justice Marshall's tenure.⁷⁸ The Marshall papers reveal that one of the rare environmental cases in which neither the Chief Justice nor the next most senior Justice had the task of assigning the opinion was City of Philadelphia v. New Jersey,⁷⁹ a 1978 opinion in which the Court held unconstitutional a New Jersey statute restricting disposal of garbage that originated out-of-state. Because both Chief Justice Burger and Justice Brennan initially voted to uphold the statute, Justice Stewart was asked to assign the opinion, and he assigned it to himself. His draft opinion eventually persuaded Justice Brennan to change his vote, leaving the Chief Justice and Justice Rehnquist alone in dissent.⁸⁰

Not infrequently, the Justices are sharply divided when they meet after oral argument to vote on the merits. Occasionally a Justice will find a case to be so close that he or she will be unable to make up his or her mind at the time of the conference vote. For example, in November 1984, when the Court considered whether EPA could grant "fundamentally different factors" variances for toxic water pollutants in Chemical Manufacturers Ass'n v. Natural Resources [23 ELR 10613] Defense Council,⁸¹ the Justices initially split 4-4 when voting on the merits, with Justice White finding the case too close to call. A week later, Justice White reported that he had "given the matter additional attention, and although I still have some doubt, I now vote to reverse."⁸² Because his was the decisive vote, Justice White then was assigned the task of drafting the majority opinion. After his draft majority opinion spawned a vigorous draft dissent from Justice Marshall, Justice White told Justice Marshall that he had written a "very good dissent."⁸³ In a letter to Justice Marshall, Justice White candidly expressed continued ambivalence toward the result: "As I see it, there is little or no difference in principle between us, and administrative law will not be measurably advanced or set back however this case is decided."⁸⁴

Drafting the Opinions

The draft majority opinion almost invariably is circulated first to all of the Justices, following by circulation of the draft dissent, if any. The Justices exchange notes indicating which opinion they will join, proposing modifications to the drafts, or indicating that they will write separate concurring or dissenting opinions. Revised drafts of the opinions are circulated as the Justices edit and refine their arguments. When each of the Justices has joined an opinion in final form, the Court's judgment is announced and the opinions are released to the public.

Prior to World War II, Supreme Court Justices rarely issued dissents; the vast majority (80-90 percent) of the Court's decisions were unanimous.⁸⁵ The issuance of dissents and separate concurring opinions has become much more frequent in the last half century; the Court issues unanimous decisions in only about 25-30 percent of the cases it hears.⁸⁶ During the nineteenth century 5-4 decisions occurred on average only once per year, and only 10 cases produced plurality opinions during the entire nineteenth century.⁸⁷ During the period from 1982 to 1990, the Court averaged more than 30 5-4 decisions per Term; a total of 116 plurality opinions were produced from 1969 to 1986 while Warren Burger served as Chief Justice.⁸⁸ Perhaps because of the complexity of environmental law, it is not surprising that more than a third of the environmental cases decided by the Court between 1970 and 1991 were decided unanimously; more than 30 percent generated only one or two dissents while slightly less than one-third were decided over three or four dissents.⁸⁹

In most cases, the Justices quickly indicate their assent to the opinion that represents the side they supported at the time of the conference vote. One surprise is the absence of any evidence in the written record indicating that the Justices realized the full implications of their landmark administrative law decision in the 1984 case Chevron U.S.A., Inc. v. Natural Resources Defense Council.⁹⁰ There is no comment in the written exchanges among the Justices that reflect any appreciation of the major change in administrative law the decision effected. Chevron has been called "one of the very few defining cases in the last twenty years of American public law,"⁹¹ because of the profound impact of its directive that courts should defer to reasonable agency interpretations of statutes in cases of statutory ambiguity. Yet the Marshall papers indicate that the decision was reached without any significant debate over Justice Stevens' draft opinion, which was initially circulated among the Justices on June 11, 1984. On June 12, Justices Rehnquist and Marshall circulated notes indicating without explanation that they were recusing themselves from the case.⁹² On June 13, Justice White informed Justice Stevens that he would join his majority opinion. Justice Brennan joined on June 14, and Justices Blackmun and Powell and Chief Justice Burger joined on June 18.⁹³ The only comment in the memos concerning the substance of Justice Stevens' opinion is the statement by Chief Justice Burger that "I am now persuaded you have the correct answer to this case."⁹⁴ The only other note in this file is Justice O'Connor's explanation that she was recusing herself from the case because the estate of her father, who died after oral argument was heard, owned stock in one of the parties.⁹⁵

In similar fashion, Justice White's draft opinion upholding an expansive interpretation of the jurisdictional reach of the Clean Water Act over freshwater wetlands in United States v. Riverside Bayview Homes, Inc.⁹⁶ was joined by all members of the Court within nine days of its initial circulation. After stylistic changes, the unanimous decision was released on December 4, 1985, just 23 days after the initial draft was circulated. The absence of indications in the written record that the Justices appreciated the significance of Chevron and Riverside Bayview may simply mean that extensive discussions at conference made written comments unnecessary, or it may indicate that the Justices did not realize how significant these decisions would be.

In other cases, the Marshall files reveal fierce battles among the Justices to influence the outcome of cases. In some cases, parties distressed by the likely outcome of a case sought to persuade the Court not to decide the merits. For example, following oral argument in the Vermont Yankee [23 ELR 10614] case,⁹⁷ respondent Natural Resources Defense Council filed a motion asking the Court to dismiss the case as moot because the Atomic Energy Commission had issued a new interim rule that had been applied to the Vermont Yankee Nuclear Power Corporation in a decision then under challenge in the First Circuit. While he agreed that the case was not technically moot, Justice Brennan tried mightily to convince the Court that the case should be dismissed rather than serve as a vehicle for Justice Rehnquist's broad pronouncement that courts cannot impose additional procedural obligations on agency rulemaking proceedings.⁹⁸

On January 17, 1978, Justice Brennan circulated a draft per curiam opinion that would dismiss the case as improvidently granted review.⁹⁹ Justice Rehnquist quickly disagreed, arguing that "[s]ince we have already heard oral argument, studied the issues, and voted on them in Conference, I would proceed to decide them publicly."¹⁰⁰ Three weeks later, Justice Brennan circulated a revised per curiam opinion, reiterating in an accompanying memorandum that "I still feel strongly that we should dismiss these cases as improvidently granted."¹⁰¹ However, because four Justices voted against dismissing the case and two Justices (Justices Powell and Blackmun) had recused themselves, Chief Justice Burger assigned the task of drafting a majority opinion to Justice Rehnquist.

After Justice Rehnquist circulated a draft, Justice Brennan agreed that there "is little to be gained" by dismissing the cases, but he continued to press for a narrower decision in the case.¹⁰² Arguing that Justice Rehnquist had interpreted the lower court's decision far too broadly, Justice Brennan stated that he would write a separate opinion unless Justice Rehnquist could accommodate his concerns. However, after several memos were exchanged among the Justices and minor changes in wording made in the draft, Justice Brennan eventually agreed to "acquiesce" in the decision, congratulating Justice Rehnquist for being "a damned good fisherman."¹⁰³ Justice Stewart, who favored dismissing the case as improvidently granted, also agreed to join Justice Rehnquist's opinion now that dismissal had become "a lost cause."¹⁰⁴

In some cases the government has sought to avoid a decision on the merits by arguing that it is likely to modify regulations under challenge in the Court. In U.S. Environmental Protection Agency v. Brown,¹⁰⁵ issued in 1977, the government, by promising to modify its regulations, convinced the Court not to decide challenges to transportation control plans imposed by EPA under the Clean Air Act.¹⁰⁶ At oral argument, the Justices requested the government to supply additional information about prospective modifications to the regulations. But the government's response frustrated Justice Powell because it failed to indicate "exactly how the regulations will be changed," leading him to question whether "the case is in a posture for us to decide it intelligently."¹⁰⁷ In a short per curiam opinion that the Marshall papers indicate was written by Justice Rehnquist, the Court ultimately vacated four lower court decisions and remanded them for consideration of mootness. Noting that three of the four lower court decisions had invalidated EPA's regulations, Justice Stevens protested that the "Court hands the Government a partial victory as a reward for an apparent concession that its position is not supported by statute."¹⁰⁸ Justice Stevens argued that the Court should have declined review or dismissed review as improvidently granted, rather than vacating the adverse lower court judgments.¹⁰⁹

As noted above,¹¹⁰ inone prominent case¹¹¹ in 1981, the Court did not acquiesce to the government's effort to avoid a decision on the merits. The case involved a challenge to OSHA's regulation to protect workers from exposure to cotton dust. At issue was whether OSHA was required to consider cost-benefit analysis. While Robert Bork, the attorney for the textile industry, maintained at oral argument that a change OSHA had just made in its cancer policy undermined the basis for the cotton-dust regulation,¹¹² the outgoing Solicitor General vehemently rejected this argument.¹¹³ After receiving post-argument submissions on the issue, the Justices agreed to decide the merits of the case. Justice Brennan then assigned to himself the task of drafting the majority opinion.

OSHA's new leadership, which had taken office shortly after oral argument, later asked the Court to remand the case to the agency because the new Reagan Administration was assessing the feasibility of using cost-benefit analysis in OSHA standard setting.¹¹⁴ In response to the government's request, Justice Brennan noted that the opinion he was preparing for the Court "is based on the proposition that cost-benefit analysis is prohibited by the statute."¹¹⁵ [23 ELR 10615] He argued that "[i]t would surely be best for all concerned to decide that issue and save the Secretary the necessity of engaging in a futile proceeding involving thousands of pages of study; he might better use the time to persuade the Congress to change the statute."¹¹⁶ Justice Rehnquist argued that the Court should not decide the case because, due to the new Reagan Administration's policies, a "decision by the Court at this time would be tantamount to an advisory opinion."¹¹⁷ Both Justices Stevens and Rehnquist cautioned Justice Brennan that while a majority had voted that OSHA was not required to use cost-benefit analysis, there may not be five votes for the proposition that OSHA was prohibited from using it.¹¹⁸ The Court ultimately rejected the government's request for a remand and ruled 5-3 that OSHA was not required to compare costs and benefits in setting standards.¹¹⁹

As noted above, Justice Brennan had wanted to hold that OSHA was precluded from considering costs and benefits. However, Justice Stevens stated that he would join Justice Brennan's opinion only "if you can modify the language in a few places to conclude merely that the Act does not require OSHA to compare costs and benefits without holding that the Act prohibits such comparisons."¹²⁰ Justice Brennan argued that "we should not leave open the question whether OSHA is precluded from" considering costs and benefits because "OSHA, the industry, and the unions should have the answer now," before "they go forward with another extensive and costly rule-making" that will only return the issue to the Court.¹²¹ While Justice Stevens agreed that "an advisory opinion indicating that OSHA is precluded from using any cost benefit analysis" might "shorten future proceedings," he maintained that the Court should not be in the business of issuing such an opinion because "we really cannot foresee all possible situations in which a cost benefit analysis might be relevant."¹²² Since Justice Stevens possessed the decisive fifth vote in the case, Justice Brennan ultimately agreed to substitute "not to require" for the words "to preclude" in his majority opinion.

One reason the Court occasionally changes its mind about deciding a case that has been granted review is that the Justices occasionally discover unexpected problems when they look more carefully at a case. This happens most frequently when the Court discovers that a case does not squarely present the question that had been anticipated when review was granted. In other cases, the Justices discover that certain issues were not properly raised below or that unexpected jurisdictional problems are present. For example, while drafting the majority opinion in Andrus v. Charlestone Stone Products Co. in May 1978,¹²³ Justice Marshall discovered that the complaint had premised jurisdiction on the Administrative Procedure Act,¹²⁴ which the Court recently had held could not serve as an independent source of federal jurisdiction.¹²⁵ Polling the other Justices on how to respond to this problem, Justice Marshall offered six options: ignore it, downplay it in a footnote mentioning federal question jurisdiction, find that federal question jurisdiction exists under 28 U.S.C. § 1331, hold that there is no jurisdiction, remand for reconsideration of jurisdiction, or request supplemental briefing on the jurisdictional issue.¹²⁶ Most of the other Justices favored the "downplay it in a footnote" option, with three giving Justice Marshall their "proxy" to resolve the problem.¹²⁷ Justice Rehnquist observed that he had "always felt, rightly or wrongly, that if one alleged sufficient facts under the Federal Rules of Civil Procedure to support federal jurisdiction, a federal court could consider his complaint, even though he had not specifically referred to the section of Title 28 which conferred jurisdiction upon the court."¹²⁸ Justice Marshall added a footnote to this effect, while removing another footnote that other Justices hadcriticized¹²⁹ as intemperate because it repeated a law professor's comment that the lower court "collectively went stark raving mad."

Struggling to Muster a Majority

One of the most important cases in which the Court found itself badly splintered was its 1980 Benzene decision,¹³⁰ in which it was asked to decide whether OSHA must balance costs and benefits before adopting a regulation designed to protect workers from exposure to benzene. After hearing oral argument in October 1979, four Justices (Justices Brennan, Marshall, White, and Blackmun) voted to uphold the regulation, while four others (Justices Stevens, Powell, and Stewart and Chief Justice Burger) were inclined to reverse but were badly split on the precise rationale for reversal.¹³¹ The ninth Justice, Justice Rehnquist, wanted to use the case to revive the nondelegation [23 ELR 10616] doctrine.¹³² Alone among the Justices, he argued that the Occupational Safety and Health Act's¹³³ (OSH Act's) directive to "set the standard which most adequately assures, to the extent feasible, … that no employee will suffer material impairment of health or functional capacity" was so imprecise as to represent an excessive and unconstitutional delegation of legislative power.¹³⁴ With five votes for invalidating the regulations, Justice Stevens was assigned the difficult task of drafting an opinion.

While draft dissents often are prepared in anticipation of what a draft majority opinion will say, they are almost never circulated among the Justices until after the draft majority opinion has been circulated. In a rare departure from this practice, Justice Marshall circulated a lengthy memorandum seeking to persuade the other Justices to uphold the benzene regulation three months before Justice Stevens had prepared the initial draft of his opinion.¹³⁵ Justice Marshall's memorandum, which ultimately became his dissenting opinion in the case, was described as helpful by both Justices Powell and Stewart, but both indicated that it was at odds with their tentative views.¹³⁶

Justice Stevens finally circulated the first draft of his opinion on May 6, 1980. The opinion included a section discussing the meaning of "feasibility" in the OSH Act that implied that OSHA was not required to determine that the benefits of the regulation bore a reasonable relationship to its costs. However, it invalidated the benzene regulation by holding that the Act required OSHA instead to determine that the risks it sought to regulate were significant and would be appreciably reduced by the regulation, something it had failed to do.¹³⁷

On the day he received Justice Stevens' draft, Justice Marshall circulated a five-page memo describing the differences between his views and those of Justice Stevens.¹³⁸ Three days later, Justice Powell wrote Justice Stevens that he probably would not be able to join his opinion because he believed that OSHA was required to find some reasonable relationship between costs and benefits.¹³⁹ Justice Rehnquist expressed the view that neither draft "breathes sufficient life into the word 'feasible' to avoid excessive delegation problems."¹⁴⁰

With the Court badly split, both Justice Stewart and Justice Marshall proposed different compromises on May 12. Justice Stewart stated that if Justice Stevens would omit the part of his opinion that discussed the meaning of feasibility, he could join the opinion. He noted that this modification might allay the concerns of Justices Powell and Rehnquist by not implying that OSHA could avoid some assessment of costs and benefits.¹⁴¹ Justice Marshall tried a new approach by proposing a very narrow decision that would seek to avoid deciding the legal issues in the case by finding that OSHA had determined that there was a reasonable relationship between the costs and benefits of the regulation and that the risk was sufficiently "significant" to justify regulation on the basis of the best evidence available.¹⁴² While Justices White and Brennan quickly endorsed Justice Marshall's new proposal, Chief Justice Burger and Justice Rehnquist encouraged Justice Stevens to pursue Justice Stewart's suggested compromise.¹⁴³

On June 17, Justice Stevens circulated a new draft that adopted Justice Stewart's suggestion by dropping the discussion of feasibility that had been in his initial draft.¹⁴⁴ Justices Stewart and Powell and Chief Justice Burger ultimately joined Justice Stevens' opinion, which became a plurality because Justice Rehnquist merely concurred in the judgment. As a result of this compromise, Justice Stevens' plurality opinion does not reveal his view that OSHA is not required to balance costs and benefits, a position that proved decisive in the next Term when Justice Stevens joined the four dissenters from Benzene in forming a majority for this position in the Cotton Dust case.¹⁴⁵

In some cases the Justices express concern about the prospect of reaching fragmented results that could make it difficult to predict the state of the law in subsequent cases. For example, in 1975 in the Alyeska case,¹⁴⁶ when the Court considered whether federal courts could award attorneys fees in the absence of statutory authorization, Justice Powell's recusal and Justice Douglas' retirement made a 4-3 outcome possible. Justice Stewart indicated that he would join Justice White's opinion reversing the lower court's award of attorneys fees to the Wilderness Society for acting as a private attorney general, "when and if it becomes clear to me that at least three other members of the Court do not disagree."¹⁴⁷ Concerned that Justice White's draft opinion unduly restricted the equitable powers of the federal courts, Justice Marshall drafted a concurring opinion concluding [23 ELR 10617] that courts could award attorneys fees to private attorneys general, but finding that an award was not warranted on the facts of the case because the Alyeska Pipeline Service Company was not the proper party to bear the costs of the litigation.¹⁴⁸ After his approach was rejected by Justice White, Justice Marshall hardened his views and converted his concurrence into a dissent that argued that a fee award should be made because Alyeska had directly benefitted from the litigation and could pass the costs on to its customers.¹⁴⁹ But after it became clear that three other Justices would be willing to join Justice White's opinion, Justice Blackmun also joined. He noted that he had not joined earlier because he "would be uncomfortable were the case to be decided by a 4 to 3 vote" because such a vote "could occasion difficulty down the road in the next case when a full Court might be available."¹⁵⁰

The task of interpreting complex statutes is one that the Court rarely relishes. In some cases the Justices struggle during the process of drafting a majority opinion to find a consistent rationale for reaching a particular result. For example, in Train v. Natural Resources Defense Council,¹⁵¹ the Justices voted 8-0 at conference in January 1975, to reverse a Fifth Circuit decision holding that EPA was required to disapprove state implementation plans with variance provisions that did not comply with Clean Air Act § 110(f)'s¹⁵² strict limits on deferred compliance. However, the Justices were uncertain about the rationale for reversal, with at least two preferring reasoning that the First Circuit had adopted in a similar case.¹⁵³ However, Justice Rehnquist reported that he ultimately adopted a different rationale because, after "[g]oing over, and over, and over the statute and its legislative history, I concluded that the approach of the First Circuit was very nearly as wrong as that of the Fifth Circuit…."¹⁵⁴ The other Justices, with the exception of Justice Douglas who simply noted his dissent without explanation, quickly embraced Justice Rehnquist's reasoning. Justice Brennan congratulated him on having "splendidly unravelled a riddle within an enigma."¹⁵⁵

In a few instances the Marshall papers contain memoranda that reveal how some Justices feel about the highly complex legislation that environmental concerns have spawned. When the Justices met in conference in 1976 to vote on the merits of the Union Electric case,¹⁵⁶ which involved the question whether Clean Air Act state implementation plans had to accommodate claims of infeasibility, Justice Rehnquist commented that the Act is a "harsh and draconian statute," a comment echoed by Justice Powell in a subsequent memorandum¹⁵⁷ and repeated in his concurring opinion in the case.¹⁵⁸ In the same case, Chief Justice Burger expressed the view that "the problems in this case are a consequence of letting a lot of little boys on Congressional staffs write legislation in noble prose that often takes little account of realities."¹⁵⁹

Legal scholars have criticized the Court for not appreciating the full implications of the shift, fueled largely by the rapid rise of environmental regulation, from a common-law regime to a legal system dominated by public law.¹⁶⁰ Material in the Marshall papers is consistent with the notion that the Court has not fully appreciated the implications of that shift. Environmental law is becoming so complex that the Justices occasionally treat environmental cases like tax litigation, which they shy away from, or defer to the views of specialists in the area. The Marshall papers contain a note from one of the Justice's law clerks about Justice Stevens' 1977 majority opinion in E. I. DuPont de Nemours & Co. v. Train,¹⁶¹ which addressed whether EPA could issue industry-wide national effluent standards under the Clean Water Act. The clerk wrote: "This certainly qualifies as the most boring this Term. I'm sure it's not Justice Stevens' fault. In fact, we're lucky he wrote it."¹⁶² In deference to specialists, Chief Justice Burger informed the other Justices in Kleppe v. New Mexico¹⁶³ that he had abandoned his plan to argue that the federal government cannot regulate wild burros on private land because of the lack of "enthusiasm that the rancher-water Justices exhibited for my scholarly analysis of the grazing problems."¹⁶⁴ He explained: "I assumed ranchers would want to be free to shoot trespassing burros but if Byron and Bill Rehnquist want to put wild burros on a new form of 'welfare,' I will submit!"¹⁶⁵

In some close cases the Justice assigned the task of writing a majority opinion will attempt to avoid a fragmented outcome by seeking guidance from the other Justices concerning the proper rationale to employ before beginning to draft an opinion. In Adamo Wrecking Co. v. United States,¹⁶⁶ a lower court had held that a demolition contractor charged with a criminal violation of EPA's regulations to prevent asbestos releases could not defend on the grounds that the work practice regulations were not an "emission standard."¹⁶⁷ After a 5-4 conference [23 ELR 10618] vote to reverse in October 1977, Justice Rehnquist asked the other Justices whether the Court should just remand the case to allow the defense to be asserted or actually decide the ultimate legal issue whether a work practice regulation could be considered an emissions standard. Chief Justice Burger and Justice White favored a simple remand, though Justice White indicated that he could go along with either result. Justice Powell expressed the view that work practice regulations could not be emissions standards, but he noted that a simple remand might convince Justice Stevens to join the majority.¹⁶⁸

Justice Rehnquist ultimately decided to draft an opinion holding that a work practice regulation could not be considered an emissions standard, though he had difficulty articulating a rationale for not granting deference to the agency's interpretation of the statute. After abandoning an attempt to draw a distinction between criminal and civil cases to justify a lack of deference, he argued that the 1977 Clean Air Act Amendments¹⁶⁹ had undermined the rationale for deferring to the agency.¹⁷⁰ Justice Stevens then drafted a dissent arguing that the "especially grave threat to human health" justified deference and noting that EPA had not adopted a conventional emissions standard because "asbestos emissions cannot be measured numerically."¹⁷¹ A separate dissent by Justice Stewart garnered three votes, but the 5-4 initial conference vote held.

In the 1987 case International Paper Co. v. Ouellette,¹⁷² the Court, which had held in Illinois v. City of Milwaukee¹⁷³ that the Clean Water Act preempted federal common law in interstate pollution cases, had to consider whether states could apply their common law to such problems. Before drafting the majority opinion, Justice Powell sought to confirm that five Justices would support the view that while the Clean Water Act did not preempt state common law, the law of the source state should apply in interstate pollution disputes heard in state court.¹⁷⁴ Justices White and O'Connor and Chief Justice Rehnquist confirmed this understanding.¹⁷⁵ Justice Scalia noted that he agreed that only the law of the source state could be applied. He observed that "[t]here are various routes to this result," but he deemed the "most honest" to be the surprising notion that the Court's decision in Illinois v. City of Milwaukee, simply by recognizing "that federal common law governs interstate pollution," had actually preempted "both the receiving state's and the source state's law."¹⁷⁶ Justice Scalia then argued that the Clean Water Act should be interpreted as preserving this federal preemption for the receiving state's law, while "returning to source states the power to provide damages for injury done elsewhere."¹⁷⁷ Justice Powell did not adopt this line of reasoning in his draft opinion, though he did agree to make minor changes in the wording of his opinion at the suggestion of Justice Scalia.¹⁷⁸

Although the Justice assigned the task of drafting a majority opinion has a considerable opportunity to influence how the Court interprets the law, the need to gain the approval of at least four other Justices can serve as a check on Justices who seek to push the law too far. For example, in the 1989 case Pennsylvania v. Union Gas Co.,¹⁷⁹ a 5-4 majority of the Court initially voted that states could not be held liable for damages under the federal Superfund legislation.¹⁸⁰ However, in preparing a draft majority opinion, Justice Scalia tried to use the case as a vehicle for overruling precedent and holding that Congress could not waive state sovereign immunity under the Eleventh Amendment.¹⁸¹ Justice White, who had voted with the majority disagreed with this conclusion and wanted the case to be decided on the narrow ground that Congress had not clearly expressed an intent to waive state sovereign immunity.¹⁸² After Justice Scalia refused to budge, Justice White ultimately joined the four Justices who had formed the dissent and created a separate five-Justice majority for the proposition that Congress had the power to waive state sovereign immunity. As a result, Justice Brennan who had prepared the draft dissenting opinion, ultimately delivered the judgment of the Court with separate five-Justice coalitions holding that Congress had intended to waive state sovereign immunity and could constitutionally do so under its commerce power.

In the 1981 case California v. Sierra Club,¹⁸³ Justice Rehnquist was assigned the task of drafting a majority opinion holding that the Rivers and Harbors Appropriations Act of 1899¹⁸⁴ did not authorize a private right of action. However, because Justice Rehnquist's draft majority opinion appeared broadly to preclude implied rights of action in other contexts, Justice White prepared a much narrower [23 ELR 10619] separate concurring opinion.¹⁸⁵ Justice White's opinion eventually persuaded Justice Brennan, who had been preparing a dissent, to join Justice White.¹⁸⁶ After Justice Blackmun, who had voted with the majority, and Justice Marshall, who had been in dissent, also joined Justice White, his opinion became the lead opinion for the Court, while Justice Rehnquist's draft was converted into a concurrence.

In other cases objections from Justices have forced the authors of draft majority opinion to scale back their reach. For example, in the 1981 case Middlesex County Sewerage Authority v. National Sea Clammers Ass'n,¹⁸⁷ Justice Powell's initial draft opinion held that the environmental laws did not create "rights, privileges or immunities" on which a suit under 42 U.S.C. § 1983 could be premised. After Justice Brennan objected strongly that Justice Powell should not seek to decide an issue that had not been briefed or argued, Justice Powell scaled back his opinion to reserve judgment on the § 1983 issue.¹⁸⁸

While Justices appear to be somewhat less inclined to modify draft opinions that already command a majority of the Court, minor changes suggested by other Justices often are incorporated. In Metropolitan Edison Co. v. People Against Nuclear Energy,¹⁸⁹ decided in 1983, Justice Brennan asked Justice Rehnquist to add a footnote clarifying that the decision that NEPA does not require psychological effects to be considered in an EIS does not suggest that "any cause-effect relationship too attenuated (or too probabilistic) tomerit damages in a tort suit would also be too attenuated to merit notice in an environmental impact statement."¹⁹⁰ Justice Rehnquist agreed to add a footnote to this effect, so long as it also stated that the Court did not mean to suggest the converse (that "proximate cause" in torts always would constitute "proximate cause" for NEPA purposes).¹⁹¹ However, Justice Rehnquist rejected another suggestion by Justice Brennan to cite with approval another case in which psychological impacts were required to be incorporated in an EIS, prompting Justice Brennan to prepare a short concurrence making the same argument.

In Dole v. United Steelworkers,¹⁹² Justice Brennan enjoyed a Court majority for his draft opinion holding that the Paperwork Reduction Act¹⁹³ does not give the Office of Management and Budget the authority to disapprove an expansion of OSHA's hazard communication standard. Justice Scalia proposed four specific changes in the language of Justice Brennan's majority opinion in order to remove references to congressional intent.¹⁹⁴ While Justice O'Connor agreed with the changes proposed by Justice Scalia,¹⁹⁵ Justice Stevens objected, noting that "it does seem to me rather strange to be unwilling to acknowledge that a search for congressional intent is an entirely appropriate part of our approach to statutory construction."¹⁹⁶ Recognizing that Justice Brennan already had a Court majority, Justice Scalia ultimately modified his position and asked only that Justice Brennan soften the language concerning how obvious the congressional intent was.¹⁹⁷ After Justice Brennan agreed to a minor change in wording, both Justices Scalia and O'Connor joined his majority opinion.

Seemingly minor changes in the wording of an opinion can have important consequences. In First English Evangelical Lutheran Church of Glendale v. County of Los Angeles,¹⁹⁸ issued in 1987, the Court held that a damages remedy was available if a prohibition on rebuilding in a floodplain worked a "temporary taking" of property in violation of the Takings Clause of the U.S. Constitution. In his majority opinion in the case, Justice Rehnquist initially had written that "on the record in this case the Fifth and Fourteenth Amendments to the U.S. Constitution would require compensation for that period."¹⁹⁹ In a subsequent draft of the opinion, Justice Rehnquist later changed this language to clarify that the Court was not holding as a matter of law that a temporary taking had occurred. As a result, the lower court on remand was free to hold, as it did, that no taking had occurred in the case.²⁰⁰

While law clerks are extremely important to the functioning of the Court, it is easy to overestimate their influence on the Justices for whom they work. The Marshall papers indicate that once the Justice had taken a position, it was most unlikely that a law clerk could get him to change his mind. Regarding Sierra Club v. Morton,²⁰¹ the 1972 landmark environmental standing case, Justice Marshall's files contain a memo from one of his law clerks stressing the "great importance" of the case and urging him to support the Sierra Club's standing to avoid "a major blow" to the "important and emerging interest" in environmental protection. The clerk argued that "[r]elaxed standing rules invariably protect minority interests who rely on the judiciary to vindicate their interests." Justice Marshall, however, joined Justice Stewart's draft majority opinion denying the Sierra Club standing just three days after it was initially circulated. Justice Douglas circulated the initial draft of his passionate dissent suggesting that the Court should confer "standing upon environmental objects to sue for their own [23 ELR 10620] preservation" on the same day that Justice Stewart circulated the initial draft of his majority opinion.²⁰²

The Marshall papers reveal that Justice Brennan sought to have the Court dismiss the case as improvidently granted. In a memo circulated on March 30, 1972, Justice Brennan accused the Court of "reaching out to decide the question whether users alone have standing when that decision would not finally dispose of the case" because the Sierra Club's members did actually use the Mineral King area.²⁰³ While Justice Brennan was not successful in getting the case dismissed, Justice Stewart did modify his majority opinion one week before the decision was released to add a footnote indicating that the Sierra Club was free to amend its complaint on remand.

In the 1973 case United States v. Pennsylvania Industrial Chemical Corp.,²⁰⁴ the Court reviewed a criminal conviction of a polluter for violating § 13 of the Rivers and Harbors Appropriations Act of 1899,²⁰⁵ which prohibits discharges of pollutants into navigable waters unless the discharger has a permit. The Court reversed a lower court decision holding that the prosecution was barred because no permit program had been established, but it ruled that the defendant could argue at retrial that he was affirmatively misled into believing his conduct was not criminal by the government's previous interpretation of the statute. One of Justice Marshall's clerks urged him to dissent from the latter holding, citing the Court's 1966 Standard Oil decision,²⁰⁶ which had clarified that the nineteenth-century law could be used to prosecute polluters.²⁰⁷ While Justice Marshall failed to follow this advice, Justices Blackmun and Rehnquist filed a partial dissent making the same argument as Justice Marshall's clerk.²⁰⁸

Vote Switches

Even if the law clerks are rarely responsible for it, Justices can and do change their minds in the course of the Court's deliberations. The Marshall papers reveal that the ultimate outcome of several important environmental cases changed as a result of Justices changing their votes after the initial conference vote on the merits. For example, the outcome of Midlantic National Bank v. New Jersey Department of Environmental Protection,²⁰⁹ decided in 1986, changed when Justice Stevens shifted his vote after reacting with concern to the broad implications of Justice Rehnquist's draft opinion. The case involved the question whether federal bankruptcy law barred states from requiring trustees to comply with state and local environmental laws when abandoning property. After oral argument, the Justices voted 5-4 that states could not require trustees in bankruptcy to clean up contaminated property before abandonment. Justice Rehnquist prepared a draft majority opinion that argued that the power of a bankruptcy trustee to abandon property "is not subject to any general requirement of compliance with state regulatory laws."²¹⁰ Justice Powell drafted a dissent arguing that "Congress did not grant trustees an apparently unlimited license to abandon property of the bankrupt estate…."²¹¹

Three Justices (Justices O'Connor and White and Chief Justice Burger) quickly joined Justice Rehnquist's draft opinion, but Justice Stevens, who had voted with the majority, was troubled by its broad implications. Noting that the case initially appeared "to involve nothing more than a fight over dollars," Justice Stevens stated that he now realized that it actually "bore serious implications for the public health" because the property constituted a serious hazard.²¹² In a four-page letter to Justice Rehnquist, Justice Stevens stated that he now believed that the key to the case was the states' argument that the act of abandonment constituted disposal of hazardous waste in violation of state environmental law.²¹³ Noting that the "state may validly prohibit truck drivers from abandoning their vehicles in Central Park or custodians from abandoning their supervision of leaky oil storage tanks," Justice Stevens concluded that he had to change his vote.²¹⁴ As a result of this change of vote, Justice Powell's dissenting opinion was converted into a majority opinion holding that "a trustee may not abandon property in contravention of a state statute or regulation that is reasonably designed to protect the public health or safety from identified hazards."²¹⁵

Another case whose outcome changed dramatically at the last minute involved the question whether the attorneys fee provisions of the environmental laws authorize fee awards to nonprevailing parties. After hearing oral argument in Ruckelshaus v. Sierra Club,²¹⁶ the Justices voted 5-4 to affirm a decision holding that it could be "appropriate" under the Clean Air Act to award attorneys fees to an environmental group even if they had not been the prevailing party in litigation. Because he had voted with the majority, Chief Justice Burger assigned the task of drafting the majority opinion to Justice Stevens. On June 6, 1983, Justice Stevens circulated a draft majority opinion, which was quickly joined by Justices Marshall, Brennan, and Blackmun. On June 20, Justice Rehnquist circulated a draft dissenting opinion harshly criticizing the majority and arguing that the decision might result in private parties who prevailed in litigation having to pay the loser's attorneys fees.²¹⁷

[23 ELR 10621]

After Chief Justice Burger informed Justice Stevens that the dissent "gives me a great deal of trouble,"²¹⁸ Justice Stevens modified his draft opinion to state explicitly that it would not "be appropriate for a court to require a private defendant to pay the attorney's fees of an unsuccessful plaintiff" under the Clean Air Act.²¹⁹ Despite this modification, Chief Justice Burger changed his vote. He explained that he had decided that it was time to send a message to Congress by refusing to bail them out when they adopt ambiguous statutory language like the provision in the Clean Air Act authorizing attorneys fees awards where "appropriate." Concluding that "we do not have a 'Snail Darter' kind of statute but rather a typically 'fuzzy' one in which Congress 'ducked' the issue," the Chief Justice explained that the decision would tell Congress: "Unless you speak clearly and plainly, we will not do your job for you."²²⁰ Because the Chief Justice's vote switch created a new 5-4 majority to reverse, he reassigned the case to Justice Rehnquist, who hurriedly edited his dissent to convert it to a majority opinion before the Court adjourned for the summer. After the decision was released the next week, it was discovered that Justice Rehnquist had failed to change a footnote in the slip opinion that attacked the Court for its "truly radical departure from American and English common law."²²¹ This resulted in speculation that the outcome of the case had changed at the last minute due to a changed vote. When the official version of the decision was published in U.S. Reports, the error was corrected by cleverly changing the word "Court" to "Court of Appeals" to make the sentence appear to be an attack on the court below, rather than on the other Justices who ended up on the dissenting side.²²²

Were it not for a last minute change of vote, the entire program for preventing significant deterioration of air quality might not exist today. Despite the importance of the case, because the vote switch created a 4-4 split, lengthy majority and dissenting opinions that had been prepared never were released. Instead, the decision below was affirmed by an equally divided court. In the case, Fri v. Sierra Club,²²³ the Supreme Court was asked to decide whether the 1970 Clean Air Act Amendments²²⁴ required EPA to create a program to prevent significant deterioration of air quality in areas of the country that already met national air quality standards. The government deemed the case so important that it had sought an emergency stay of the lower court's decision. After oral argument, the Justices voted 5-3 (with Justice Powell not participating in the case) to reverse a D.C. Circuit's decision upholding a district court's directive that EPA develop a prevention of significant deterioration program.²²⁵ Justice Stewart was assigned the task of drafting a majority opinion. On May 29, 1973, he circulated a draft majority opinion. Responding to the argument that the goals of the Clean Air Act would be undermined if air quality were allowed to deteriorate in areas that already met national standards, Justice Stewart wrote:

Congress may have failed to impose the right requirements to accomplish its announced goal. But it is the duty of the courts to apply the law as it is written. And it is plain to us that neither the statute nor the administrative standards compels the States to adopt plans which prevent the significant deterioration of air quality that is now cleaner than the levels prescribed by the national secondary standards.²²⁶

The Marshall files contain a note from Louis Michael Seidman, who was then a law clerk to Justice Marshall, that sheds light on the subsequent outcome of the case. The note to Justice Marshall reads:

You voted at conference with Justice Stewart, but you indicated subsequently that you were thinking of changing your vote. If you vote the other way, there will be a 4-4 split. I think you should do so. It seems to me that the legislative history Justice Stewart quotes on pp. 10-13 provides a compelling indication that Congress did not intend to permit the degradation of the environment up to the level of the secondary air standards. And I cannot believe that in passing a pro-environment bill, Congress thought it was giving the go-ahead to clean air states to pollute their air.²²⁷

The note concludes by advising that "[i]f you do want to change your vote, you might want to do it quickly so that a dissent does not have to be written."²²⁸

In fact, Justice Douglas quickly prepared a draft dissent, which he circulated on June 5, 1973. Justice Douglas wrote that "[i]t is inconceivable to me that Congress in passing the Clean Air Act contemplated an administrative regime that would make possible the pollution of existing clean air basins."²²⁹ Noting that the air pollution "problem is intrinsically national in scope as all winds are interstate and many planetary," Justice Douglas argued that "what we do today does not clean up air pollution but allows it to be spread so that even pristine areas are vulnerable."²³⁰ On the day Justice Douglas circulated his draft dissent, Justice Marshall informed the Court that he planned to change his vote. He explained that:

In my judgment, the statement in section 101(b)(1) of the Act of a purpose "to protect and enhance the quality of the Nation's air resources" is at least sufficient to [23 ELR 10622] create an ambiguity as to whether the Act was intended to authorize the degradation of those resources. When one looks at the legislative history to resolve this ambiguity, it becomes clear that Congress did not intend to permit states with "clean" air to submit plans providing for the deterioration of air quality up to the secondary standards.²³¹

While praising Justice Stewart for having written a "persuasive" opinion and conceding that "the issue is certainly not free from doubt," Justice Marshall concluded that he would vote to affirm.²³² Two days later, Justice Stewart circulated what he jokingly referred to as a "short, second draft" of his opinion²³³ that contained the only statement about the case released by the Court: "The judgment is affirmed by an equally divided Court."²³⁴ While there is some precedent for the publication of a dissent in exceptional circumstances where cases are affirmed by an equally divided Court,²³⁵ Justice Stewart's opinion never saw the light of day. In similar circumstances in a voting rights case, Justice Stewart told Justice White, who had written a 32-page memorandum that became irrelevant, "Perhaps, as Felix Frankfurter used to say, you can now put the memorandum in a letter to a friend."²³⁶

In rare cases a Justice assigned the task of preparing a majority opinion will conclude during the drafting process that the case should come out the other way. This apparently is what happened when the Supreme Court upheld California's moratorium on the construction of nuclear power plants in 1983 in Pacific Gas & Electric Co. v. California Energy Commission.²³⁷ The Marshall papers reveal that the Justices initially had voted "a rather shaky 6-3 to reverse"²³⁸ a decision upholding the moratorium in the face of claims that it was preempted by the Atomic Energy Act.²³⁹ Chief Justice Burger assigned the opinion to Justice White, who confessed a week later that "[m]y own vote was not all that firm, and I have been in the process of changing my mind since that time."²⁴⁰ Justice White proposed either circulating a memorandum that would come out the other way or having the opinion reassigned. Chief Justice Burger then proposed that the Court hold a further conference on the case. After none of the other Justices expressed an interest in holding another conference, the Chief Justice then asked Justice White to "proceed with this as a 'memo assignment,'" noting that "each of us is free to do a memo of views."²⁴¹ A month later, Justice White circulated a memorandum stating that because California had imposed the moratorium for economic, rather than safety reasons, it was not inconsistent with federal regulation of nuclear power. This memorandum eventually became a majority decision that was joined by each of the other five Justices who had initially voted to strike down the law.²⁴²

Voting Patterns of the Justices

Presidents Nixon, Reagan, and Bush sought to reshape the federal judiciary by appointing judges who would support a conservative agenda. This agenda generally was hostile toward environmental interests and the expansion of citizen access to the courts. As a result, the federal courts have become less receptive to environmental concerns in recent years.²⁴³ Table 2 and Figure 3 provide data concerning how frequently individual Supreme Court Justices voted in favor of environmental interests in cases they decided with written opinion from 1970-1991.²⁴⁴ Not surprisingly, the data indicate that Justice Douglas was the Justice most inclined to vote in favor of environmental interests, while Justice Scalia has been the Justice least inclined to do so. Next to Justice Scalia, Justice O'Connor has been the Justice least inclined to rule in favor of environmental interests. However, Figure 3 suggests that she also has been the Justice most prone to finding middle ground in environmental cases by issuing opinions that grant partial relief to environmental concerns.

TABLE 2. VOTING RECORD OF U.S. SUPREME COURT JUSTICES IN ENVIRONMENTAL CASES 1970-1991

Votes for Votes for Votes for No. of

Justice Envtl. Interests Both Other Parties Cases

William O. Douglas 68.8% 12.5% 18.8% 16

Thurgood Marshall 60.0% 9.4% 30.6% 85

Harry A. Blackmun 54.7% 9.3% 36.0% 86

William J. Brennan Jr. 54.2% 12.0% 33.7% 83

John Paul Stevens 52.2% 2.9% 44.9% 69

Potter Stewart 44.4% 7.4% 48.1% 54

Byron R. White 39.5% 9.3% 51.2% 86

Warren E. Burger 38.9% 5.6% 55.6% 72

William H. Rehnquist 36.6% 11.0% 52.4% 82

Lewis F. Powell 33.8% 7.7% 58.5% 65

Sandra Day O'Connor 29.4% 23.5% 47.1% 34

Anthony Kennedy 28.6% 0.0% 71.4% 7

Antonin Scalia 13.3% 6.7% 80.0% 15

Figrue 3, VOTING RECORDS OF U.S. SUPREME COURT JUSTICES IN ENVIRONMENTAL CASES 1970-1991

[SEE ILLUSTRATION IN ORIGINAL]

Even casual readers of the Marshall papers can discern certain patterns in the efforts by Justices to influence the direction of the Court. During his early days on the Court,Justice Rehnquist aggressively advocated positions that would push the Court in decidedly more conservative directions. From his efforts to summarily reverse the "snail darter" case to his claim that the OSH Act was an unconstitutional delegation of legislative power, Justice Rehnquist propounded legal theories that would jeopardize major aspects of federal environmental regulation. Yet Justice Rehnquist was intellectually consistent in his defense of federalism, voting in favor of states when their efforts to promote environmental protection were challenged as violative of the Commerce Clause or federal legislation promoting nuclear power.²⁴⁵

Justice Scalia now appears largely to have succeeded Justice Rehnquist in advocating judicial activism to roll [23 ELR 10623] back environmental regulation.²⁴⁶ His efforts to justify extreme views of standing and the Fifth Amendment's Takings Clause draw on common-law principles even though common law has largely been supplanted by the explosion of public law spawned by environmental and other concerns. In Lujan v. National Wildlife Federation,²⁴⁷ while Justice Scalia had informed the other Justices that his opinion "goes beyond what the Conference agreed to" by reversing the Court of Appeals rather than remanding for reconsideration of the environmental group's standing, it also suggested that the Bureau of Land Management's "land withdrawal program" could not constitute reviewable final agency action.²⁴⁸ Justice Stevens replied that he would await the dissent because, in light of the breadth of Justice Scalia's opinion "this really is not a standing case any more."²⁴⁹ Justice O'Connor, who represented the crucial fifth vote needed by Justice Scalia, drafted a partial concurrence questioning Justice Scalia's suggestion that no "land withdrawal program" exists independently of thousands of site-specific land use decisions.²⁵⁰ Justice Scalia then added a footnote to his opinion conceding that such a program exists, but maintaining that it could not constitute reviewable agency action except for specific final orders or regulations applying across-the-board to all site-specific decisions.²⁵¹ Justice O'Connor withdrew her separate opinion in light of the changes made by Justice Scalia.²⁵²

Post-Decision Proceedings

After the Court decides a case, the most important decision it faces is how to dispose of certiorari petitions that it has been holding in abeyance because it believes they raise issues similar to those in the case it decided. If the Court decides a case in a manner contrary to the law applied by the lower courts in the cases the Court is holding in abeyance, the Court will generally vacate the cases held in abeyance and remand them for reconsideration in light of the Court's new decision. During its 1986-87 Term, the Court vacated eight environmental cases and remanded them for reconsideration in light of decisions it had issued or other developments (such as enactment of the Superfund Amendments and Reauthorization Act of 1986).²⁵³

For example, following the Court's Benzene decision, the Court had to decide what to do with two cases involving challenges to OSHA's coke-oven-emissions standard. The petitioners in those cases had argued that OSHA had erred by not considering whether the benefits of the regulation bore a reasonable relationship to the costs. While noting that OSHA had not made any effort to quantify the benefits of the coke-oven standard, Justice Stevens expressed the view that the coke-oven standard was different because "here, unlike Benzene, there is no question but that a significant health risk exists."²⁵⁴ However, Justice Stevens concluded that he would vote to grant review in these cases to consider the cost-benefit issue the Court had ducked in Benzene and to address the question of how the OSH Act's feasibility requirement should be interpreted.²⁵⁵ The Justices ultimately voted to grant review in these cases²⁵⁶ and the cost-benefit issue was decided during the Court's 1980-81 Term in the Cotton Dust case.

In rare cases a Justice will seek to change the wording of a decision that already has been released in slip opinion form. For example, noting that a law professor had criticized his choice of wording, Justice Rehnquist asked²⁵⁷ if any Justice objected to his changing the penultimate sentence of his opinion concurring in the 1981 judgment in Hodel v. Virginia Surface Mining & Reclamation Ass'n.²⁵⁸ He included the following tongue-in-cheek threat to Justice Marshall: "if you don't, I will write for my memoirs the infamous account of your deletion of an entire paragraph in the "Granny Goose" opinion in one of the earlier Terms of the 70's after the case had come down, after I had written a dissent directed largely at the paragraph."²⁵⁹ Justice Marshall had marked this portion of Justice Rehnquist's memo and written next to it "Ain't funny."²⁶⁰

The Justices of the Supreme Court are not unconcerned about the effects of their decisions on the real world. Thus, it is not surprising to find them circulating a newspaper article describing how Congress is reacting to the "snail darter" decision by amending the ESA. The realization that an environmental revolution was in the offing in the early 1970s is reflected in a note sent to Justice Marshall after he had authored the Overton Park decision²⁶¹ that broadened the access of environmental groups to the courts. The note, which enclosed a New York Times' editorial about a long-running controversy over plans to build a highway through a forest preserve in North Carolina, reads: "You can imagine what your opinion in Overton will do to this sanctuary!"²⁶²

[23 ELR 10624]

Should "Judicial History" Count?

In the wake of the release of the Marshall papers, one issue that undoubtedly will arise is whether the record they provide of the Court's deliberations — a kind of "judicial history" — should be afforded any weight in interpreting the Court's decisions in subsequent litigation. After the availability of the Marshall papers became widely known, legal historians using them at the Library of Congress were out-numbered briefly by lawyers perusing the papers for insights on issues that are the subject of ongoing litigation. In some instances, the papers do provide information not available in the Court's written decisions that could assist litigants in framing their arguments in anticipation of Supreme Court review. Given the tenacity of lawyers, some eventually may seek to use the papers to persuade a lower court or an administrative agency about how to respond to a Supreme Court decision. For example, should it matter to an agency or reviewing court that the Justice who wrote a decision reversing an agency action told his colleagues that he doubted that the agency on remand "would find it too difficult to cover its tracks based on the present record"?²⁶³

Affording any weight to this kind of "judicial history" would undermine a principle the Court has fought hard to preserve — that its formal written opinions are the sole record of its decisions. The Marshall papers contain several illustrations of how the Court has sought to defend this principle. For example, six days before the release of Roe v. Wade²⁶⁴ and Doe v. Bolton,²⁶⁵ the Court's landmark abortion decisions, Justice Blackmun, the author of the majority opinions in both cases, expressed concern about "the headlines that will be produced all over the country" when the decisions are announced.²⁶⁶ Justice Blackmun circulated to the other Justices a statement that he planned to read when announcing the decisions from the bench. The statement carefully explained what the Court was and was not deciding. Justice Blackmun proposed that copies be given to the Court's public affairs officer "for distribution to the press" so that "there should be at least some reason for the press not going all the way off the deep end."²⁶⁷ Justice Brennan quickly objected to the proposal that the statement be distributed to the press. "Our practice in the past has always been not to record oral announcements of opinions in order to avoid the possibility that the announcement will be relied upon as the opinion or as interpreting the filed opinion. I think that policy is very sound and, important as the abortion cases are, I do not think we ought to depart from that policy."²⁶⁸ Justice Blackmun then abandoned his plans to release a transcript of his remarks.

The Supreme Court seeks to discourage anyone from attaching significance to anything beyond its written decisions and orders. The Court does make tape recordings of oral arguments and prepares transcripts of them to assist the Justices in drafting opinions.²⁶⁹ Copies of the tapes can be made available to persons engaged in serious scholarly and legal research after three years have elapsed, but the Court refuses to identify the Justices whose voices are on the recordings. Chief Justice Burger expressed outrage in July 1979 when CBS News broadcasted a tape recording of the oral argument that had taken place eight years previously in the "Pentagon Papers" case. He demanded an explanation of how CBS got a copy of the tape from the Archivist of the United States, who had custody of the tape recordings.²⁷⁰ After the Acting Archivist replied that CBS must have received the tape from a law professor because all 11 copies of the tape had been sold to professors for educational use,²⁷¹ the Chief Justice noted that he had "always thought that the claim of use of these tapes for 'teaching' is a complete phony."²⁷² However, the Acting Archivist reported in February 1980 that "[r]esearchers, particularly professors and students of constitutional law, have found these records to be a unique and invaluable source for the history of the Supreme Court."²⁷³

While the Marshall Papers are an even more valuable source of information concerning the Court's history, the fact that they contain information about cases barely two years old greatly increases their relevance for contemporary litigants. Yet the Court's policy that only its written decisions count remains a sound policy that should continue to be honored. Lawyers should not have to employ legal historians to prepare "judicial histories" from the papers of former Justices whenever the meaning of the Court's decisions is at issue in litigation.

Conclusion

Despite the controversy that surrounded their release, the Marshall papers confirm that the Supreme Court is one American institution that functions extraordinarily well. The papers indicate that the Justices are hard-working individuals who struggle to lend clarity and predictability to the law while confronting some of the most difficult issues in our society. While the Justices often find it difficult to reach consensus, they understand that they must decide [23 ELR 10625] individual cases, but that the cases they decide can have a vast impact on the shape of the law. While some Justices seek to push the law in new directions, there is a complete absence of the kind of horse trading that typically prevails in the highly political legislative arena. Justices do not trade off votes in one case for votes in another. Nevertheless, they can and do change their minds, often at the last minute, and sometimes with dramatic consequences.

1. After White House sources revealed in June 1993 that Secretary Babbitt was the leading candidate to replace retiring Justice Byron White on the Supreme Court, environmental groups expressed strong opposition because they did not want him to leave the Interior Department. Transcript of President's Announcement and Judge Ginsburg's Remarks, N.Y. TIMES, June 15, 1993, at A24.

2. Thurgood Marshall Papers (on file with the Manuscript Division, U.S. Library of Congress) [hereinafter the T.M. Papers]. The Library of Congress was severely criticized for its decision to release the Marshall papers. On May 25, 1993, Chief Justice William H. Rehnquist sent a letter to the Librarian of Congress, expressing surprise and disappointment concerning the release of the papers on behalf of a majority of the Supreme Court. Neil A. Lewis, Chief Justice Assails Library on Release of Marshall Papers, N.Y. TIMES, May 26, 1993, at A1. As a former law clerk to a Supreme Court Justice, the author has great respect for the Court's tradition of confidentiality. Thus, the discussion in this Article is based entirely on material that is now public information and not on any confidential information known to the author through his work as a law clerk. While Justice Marshall's papers eventually should have been made available to the public for purposes of historical research, the contemporary release of some material contained in them, such as law clerk personnel files, raises some privacy concerns. Such material will not be quoted or cited by the author.

3. The research on which this Article is based is part of a more extensive study the author is conducting of the implications for judicial decisionmaking of the shift from a common-law regime to a legal system largely dominated by public law.

4. See, e.g., Missouri v. Illinois, 180 U.S. 208 (1901); Missouri v. Illinois, 200 U.S. 496 (1906); Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907); New York v. New Jersey, 256 U.S. 313 (1921); New Jersey v. City of New York, 283 U.S. 473 (1931).

5. See, e.g., New York v. New Jersey, 256 U.S. 313 (1921); Illinois v. City of Milwaukee, 406 U.S. 91, 2 ELR 20201 (1972).

6. City of Milwaukee v. Illinois, 451 U.S. 304, 11 ELR 20406 (1981).

7. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 ELR 20110 (1971).

8. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 8 ELR 20288 (1978); Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 14 ELR 20507 (1984).

9. Confidential Memorandum from Justice Lewis Powell to the Education Committee of the U.S. Chamber of Commerce, Attack on American Free Enterprise System (Aug. 23, 1971), T.M. Papers, supra note 2, box 95, file 10. When the memo was revealed in a Jack Anderson column in September 1972, Justice Powell circulated a copy among the Justices with a note saying that "Jack thinks the memo shows bias in favor of the free enterprise system over any form of statism. He is right, at least in this respect." Id.

10. Id.

11. Id.

12. Letter from Justice William Douglas to the Chief Justice and Associate Justices (Nov. 14, 1975), T.M. Papers, supra note 2.

13. Id.

14. Letter from Justice William Rehnquist to Chief Justice Warren Burger (Sept. 24, 1973), T.M. Papers, supra note 2 [hereinafter Rehnquist Letter]. Fourteen months later, Justice Rehnquist circulated a memo asking if anyone objected to his putting together a skit for the Court's Christmas party that would "spoof" the three senior members of the Court — Chief Justice Burger and Justices Douglas and Brennan. Memorandum from Justice William Rehnquist to the Conference (Nov. 29, 1974), T.M. Papers, supra note 2. Justices Douglas gave his approval, so long as any frailties were attributed to the other two, a sentiment echoed by Justice Brennan. Letter from Justice William Douglas to Justice William Rehnquist (Nov. 30, 1974), T.M. Papers, supra note 2; letter from Justice William Brennan to Justice William Rehnquist (Dec. 2, 1974), T.M. Papers, supra note 2.

15. Rehnquist Letter, supra note 14.

16. Letter from Chief Justice Warren Burger to Justice William Rehnquist (Sept. 25, 1973), T.M. Papers, supra note 2. The "leaks" to which Chief Justice Burger refers apparently involved the Court's abortion decisions, the substance of which were reported in Time magazine shortly before the Court released them. Abortion on Demand, TIME, Jan. 29, 1973, at 46 ("Last week TIME learned that the Supreme Court has decided to strike down nearly every anti-abortion law in the land…. No decision in the [C]ourt's history, not even those outlawing public school segregation and capital punishment, has evoked the intensity of emotion that will surely follow this ruling."). In a memorandum marked "Personal and Private," but nonetheless opened by one of Justice Marshall's clerks, Chief Justice Burger decried the leaks as "a gross breach of security of the process of the Court" that "goes to the very heart of the integrity of our processes." Memorandum from Chief Justice Warren Burger to the Conference (Jan. 24, 1973), T.M. Papers, supra note 2, box 98, file 10. He demanded that the Court hold a special conference to determine what to do about the leak and pledged to fire any of his clerks who "even talked with this reporter, or any other reporter, in these circumstances…." Id.

While the Marshall papers do not report the denouement of the Chief Justice's investigation, in The Brethren, Bob Woodward and Scott Armstrong report that one of Justice Powell's law clerks confessed to having talked to Time reporter David Beckwith, supposedly to help him write an intelligent story about the decisions. BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN 237 (1979). They report that the clerk offered to resign, but he was permitted to stay after delivering a lengthy personal apology to Chief Justice Burger.

17. Letter from Justice Lewis Powell to Chief Justice Warren Burger (Nov. 1, 1973), T.M. Papers, supra note 2.

18. Letter from Justice William Douglas to Chief Justice Warren Burger (Nov. 5, 1973), T.M. Papers, supra note 2.

19. Memorandum from Chief Justice Warren Burger to the Conference (Nov. 13, 1973), T.M. Papers, supra note 2.

20. Memorandum from Justice William Douglas to the Conference (Oct. 18, 1974), T.M. Papers, supra note 2.

21. Administrative files, T.M. Papers, supra note 2, box 241, file 7.

22. The Supreme Court, 1967 Term — Foreward, 82 HARV. L. REV. 63, 303 (1968); The Supreme Court, 1990 — Leading Cases, 105 HARV. L. REV. 177, 423 (1991).

23. Letter from Chief Justice Warren Burger to Carl Albert, Speaker of the House of Representatives (Oct. 13, 1972), T.M. Papers, supra note 2 [hereinafter Burger Letter]. Chief Justice Burger had made this same recommendation in his annual reports to the American Bar Association in 1970, 1971, and 1972.

24. 42 U.S.C. §§ 4321-4370a, ELR STAT. NEPA 003-012.

25. Burger Letter, supra note 23.

26. The Supreme Court, 1967 Term — Foreward, supra note 22, at 303; The Supreme Court, 1990 — Leading Cases, supra note 22, at 423.

27. Any survey of environmental cases must confront the problem of how to define what an environmental case is. The data in Table 1 and Figure 2 are based on cases listed as "environmental" by U.S. Law Week. Because it is possible that this publication's concept of what constitutes an environmental case may have changed over time, these numbers should be treated with caution in assessing possible trends in the Supreme Court's responses to environmental cases.

28. See Justice John Paul Stevens, The Life Span of a Judge-Made Rule, 58 N.Y.U. L. REV. 1 (1983).

29. For a description of the history of this practice, see ROBERT L. STERN ET AL., SUPREME COURT PRACTICE 267 (1986). While considering dissents from denials of review counterproductive, Singleton v. Commissioner, 439 U.S. 940, 942-46 (1978), Justice Stevens expressed disagreement with a decision to hear an environmental case in Watt v. Alaska, 451 U.S. 259, 273, 11 ELR 20378, 20382 (1981).

30. United States v. Pennsylvania Indus. Chem. Corp., No. 72-624 (draft dissent from denial of certiorari by Justice William Douglas) (Dec. 1972), T.M. Papers, supra note 2, box 96, folder 3.

31. 33 U.S.C. § 407 (1988).

32. United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 3 ELR 20401 (1973).

33. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA 13-110.

34. City of Milwaukee v. Illinois, 451 U.S. 304, 11 ELR 20406 (1981).

35. City of Milwaukee v. Illinois, No. 79-408 (draft dissent from denial of certiorari by Justice Byron White) (Mar. 3, 1980), T.M. Papers, supra note 2, box 267, folder 5.

36. 449 U.S. 64, 10 ELR 20924 (1980).

37. U.S. Environmental Protection Agency v. National Crushed Stone Ass'n, No. 79-770 (draft dissent from denial of certiorari by Justice Byron White) (Jan. 17, 1980), T.M. Papers, supra note 2, box 268, file 1.

38. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 18 ELR 20142 (1987).

39. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., No. 86-473 (draft dissent from denial of certiorari by Justice Byron White) (Dec. 22, 1986), T.M. Papers, supra note 2, box 440, folder 4. The Fifth Circuit decision that Justice White thought had created a conflict was Hamker v. Diamond Shamrock Chemical Co., 756 F.2d 392, 15 ELR 20385 (5th Cir. 1985).

40. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., No. 86-473 (draft dissent from denial of certiorari by Justice Byron White) (Jan. 8, 1987), T.M. Papers, supra note 2, box 440, folder 4.

41. Ohio v. Wynandotte Chem. Corp., 401 U.S. 493, 1 ELR 20124 (1971).

42. Memorandum from Chief Justice Warren Burger to the Conference (Jan. 18, 1971), T.M. Papers, supra note 2, box 74, file 13.

43. Id.

44. Wynandotte, 401 U.S. at 504, 1 ELR at 20127.

45. Id. at 505, 1 ELR at 20127.

46. Vermont v. New York, 406 U.S. 186 (1972).

47. Vermont v. New York, 417 U.S. 270 (1974).

48. See the statistics reported by the Court at 404 U.S. 958 (1971).

49. See the statistics reported by the Court at 487 U.S. 1267 (1988).

50. 437 U.S. 153, 8 ELR 20513 (1978).

51. Memorandum from Justice Harry Blackmun to the Conference (Oct. 26, 1977), T.M. Papers, supra note 2. Justice Marshall's notes indicate that Justice Blackmun initially had voted to "join 3," which means that his vote would be counted as supporting a grant of certiorari only if three other Justices voted to do so. Administrative files, T.M. Papers, supra note 2, box 218.

52. Tennessee Valley Auth. v. Hill, No. 76-1701 (draft per curiam opinion by Justice William Rehnquist) (Oct. 5, 1977), T.M. Papers, supra note 2.

53. Tennessee Valley Auth. v. Hill, No. 76-1701 (draft dissenting opinion by Justice Potter Stewart) (Oct. 12, 1977), T.M. Papers, supra note 2.

54. Id.

55. Tennessee Valley Auth. v. Hill, No. 76-1701 (draft dissenting opinion by Justice John Paul Stevens) (Oct. 20, 1977), T.M. Papers, supra note 2.

56. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA 002-027.

57. Tennessee Valley Auth. v. Hill, No. 76-1701 (draft concurring opinion by Justice Lewis Powell) (Oct. 21, 1977), T.M. Papers, supra note 2.

58. Letter from Chief Justice Warren Burger to Justice Lewis Powell (Oct. 25, 1977), T.M. Papers, supra note 2.

59. Memorandum from Justice Harry Blackmun to the Conference (Oct. 26, 1977), T.M. Papers, supra note 2.

60. Memorandum from Justice William Brennan to the Conference (Oct. 27, 1977), T.M. Papers, supra note 2.

61. Note signed MNR (Oct. 26, 1977), T.M. Papers, supra note 2.

62. Id.

63. Tennessee Valley Auth., 437 U.S. at 153, 8 ELR at 20513.

64. H. W. PERRY, DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT 99 (1991).

65. 444 U.S. 223, 10 ELR 20079 (1980).

66. Letter from Justice Potter Stewart to Justice William Rehnquist (Nov. 14, 1979), T.M. Papers, supra note 2, box 244, file 2; letter from Justice Byron White to Justice William Rehnquist (Nov. 14, 1979), T.M. Papers, supra note 2, box 244, file 2; letter from Justice Harry Blackmun to Justice William Rehnquist (Nov. 14, 1979), T.M. Papers, supra note 2, box 244, file 2; letter from Justice Lewis Powell to Justice William Rehnquist (Nov. 14, 1979), T.M. Papers, supra note 2, box 244, file 2; letter from Justice William Brennan to Justice William Rehnquist (Nov. 14, 1979), T.M. Papers, supra note 2, box 244, file 2; letter from Justice John Paul Stevens to Justice William Rehnquist (Nov. 15, 1979), T.M. Papers, supra note 2, box 244, file 2; letter from Chief Justice Warren Burger to Justice William Rehnquist (Nov. 15, 1979), T.M. Papers, supra note 2, box 244, file 2.

67. Justice Byron White, Statement at the Eighth Circuit Judicial Conference, Colorado Springs, Colorado (Aug. 5, 1993) [hereinafter Colorado Conference].

68. Id. While the Court granted review in only 135 cases during its 1968-69 Term (see statistics reported at 404 U.S. 958 (1971)), it agreed to hear 187 cases during its 1985-86 Term (see statistics reported at 487 U.S. 1267 (1988)).

69. Justice Byron White, Statement at the Colorado Conference, supra note 67; Justice Sandra Day O'Connor, Statement at the Colorado Conference, supra note 67.

70. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 ELR 20110 (1971).

71. Overton Park Highway, 1 ENV'T REP. (BNA) 983 (1971).

72. 401 U.S. at 402, 1 ELR at 20110.

73. Id.

74. American Textile Mfrs. Inst. v. Donovan, No. 79-1429, at 6-7 (transcript of oral argument) (Jan. 21, 1981).

75. Id. at 7.

76. See infra notes 110-22 and accompanying text.

77. Justice Byron White, Statement at the Colorado Conference, supra note 67.

78. This charge is prominently featured in The Brethren. WOODWARD & ARMSTRONG, supra note 16, at 65.

79. 437 U.S. 617, 8 ELR 20540 (1978).

80. Letter from Justice William Brennan to Justice Potter Stewart (June 2, 1978), T.M. Papers, supra note 2.

81. 470 U.S. 116, 15 ELR 20230 (1985).

82. Letter from Justice Byron White to Chief Justice Warren Burger (Nov. 13, 1984), T.M. Papers, supra note 2.

83. Letter from Justice Byron White to Justice Thurgood Marshall (Feb. 13, 1985), T.M. Papers, supra note 2.

84. Id.

85. DAVID G. BARNUM, THE SUPREME COURT AND AMERICAN DEMOCRACY 79 (1993).

86. Id.

87. Id. at 81.

88. Id.

89. These statistics were derived by analyzing cases listed as environmental cases in U.S. Law Week for the period from 1970 to 1991.

90. 467 U.S. 837, 14 ELR 20507 (1984).

91. Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2075 (1990).

92. Letter from Justice William Rehnquist to Justice John Paul Stevens (June 12, 1984), T.M. Papers, supra note 2, box 341 [hereinafter Rehnquist 1984 Letter]; letter from Justice Thurgood Marshall to Justice John Paul Stevens (June 12, 1984), T.M. Papers, supra note 2, box 341 [hereinafter Marshall 1984 Letter].

93. Rehnquist 1984 Letter, supra note 92; Marshall 1984 Letter, supra note 92.

94. Letter from Chief Justice Warren Burger to Justice John Paul Stevens (June 18, 1984), T.M. Papers, supra note 2.

95. Letter from Justice Sandra Day O'Connor to Justice John Paul Stevens (June 14, 1984), T.M. Papers, supra note 2.

96. 474 U.S. 121, 16 ELR 20086 (1985).

97. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 8 ELR 20288 (1978).

98. Justice Brennan initially had been one of the five Justices that had voted to grant review in the case. Justices Rehnquist, Marshall, and White and Chief Justice Burger had also voted to grant review, while Justices Stevens, Blackmun, and Stewart had voted to deny review. Justice Powell was absent when the Court had voted to hear the case. Administrative files, T.M. Papers, supra note 2.

99. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, No. 76-419 (draft per curiam opinion by Justice William Brennan) (Jan. 17, 1978), T.M. Papers, supra note 2.

100. Letter from Justice William Rehnquist to Justice William Brennan (Jan. 17, 1978), T.M. Papers, supra note 2.

101. Memorandum from Justice William Brennan to the Conference (Feb. 10, 1978), T.M. Papers, supra note 2.

102. Memorandum from Justice William Brennan to Justice William Rehnquist (Feb. 27, 1978), T.M. Papers, supra note 2.

103. Letter from Justice William Brennan to Justice William Rehnquist (Mar. 20, 1978) (apparently misdated Mar. 20, 1976), T.M. Papers, supra note 2.

104. Letter from Justice Potter Stewart to Justice William Rehnquist (Mar. 16, 1978), T.M. Papers, supra note 2.

105. 431 U.S. 99, 7 ELR 20375 (1977).

106. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA 19-194.

107. Letter from Justice Lewis Powell to Chief Justice Warren Burger (Jan. 14, 1977), T.M. Papers, supra note 2.

108. 431 U.S. at 104, 7 ELR at 20376.

109. Id.

110. See supra notes 74-76 and accompanying text.

111. American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 11 ELR 20736 (1981).

112. American Textile Mfrs. Inst. v. Donovan, No. 79-1429, at 6-7 (transcript of oral argument) (Jan. 21, 1981).

113. Letter from Wade H. McCree Jr., U.S. Solicitor General, to Alexander Stevas, Clerk of the U.S. Supreme Court (Jan. 30, 1981), T.M. Papers, supra note 2.

114. See Memorandum from Justice William Brennan to the Conference (Mar. 31, 1981), T.M. Papers, supra note 2.

115. Id.

116. Id.

117. Memorandum from Justice William Rehnquist to the Conference (Apr. 2, 1981), T.M. Papers, supra note 2.

118. Letter from Justice John Paul Stevens to Justice William Brennan (Apr. 1, 1981), T.M. Papers, supra note 2; memorandum from Justice William Rehnquist to the Conference (Apr. 2, 1981), T.M. Papers, supra note 2.

119. American Textile Mfrs. Inst., 452 U.S. at 490, 11 ELR at 20736.

120. Letter from Justice John Paul Stevens to Justice William Brennan (May 18, 1981), T.M. Papers, supra note 2.

121. Letter from Justice William Brennan to Justice John Paul Stevens (May 19, 1981), T.M. Papers, supra note 2 (emphasis in original).

122. Letter from Justice John Paul Stevens to Justice William Brennan (May 19, 1981), T.M. Papers, supra note 2.

123. 436 U.S. 604 (1978).

124. 5 U.S.C. §§ 500-596, ELR STAT. APA 5-39.

125. Califano v. Sanders, 430 U.S. 99 (1977).

126. Memorandum from Justice Thurgood Marshall to the Conference (May 8, 1978), T.M. Papers, supra note 2.

127. Justices Brennan, Powell, Stewart, and Rehnquist favored the "downplay it in a footnote" option. Justices Stevens and White suggested a more extensive discussion, but, like Chief Justice Burger, told Justice Marshall that he had their "proxies." Memoranda, T.M. Papers, supra note 2, box 214, file 5.

128. Letter from Justice William Rehnquist to Justice Thurgood Marshall (May 9, 1978), T.M. Papers, supra note 2.

129. Andrus v. Charlestone Stone Prods. Co., No. 77-380 (draft majority opinion by Justice Thurgood Marshall) (May 31, 1978), T.M. Papers, supra note 2.

130. Industrial Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 10 ELR 20489 (1980).

131. See Memorandum from Justice Thurgood Marshall to the Conference (Jan. 25, 1980), T.M. Papers, supra note 2, box 247, file 5-7; letter from Justice Lewis Powell to Justice Thurgood Marshall (Feb. 8, 1980), T.M. Papers, supra note 2, box 247, file 5-7; letter from Justice Potter Stewart to Justice Thurgood Marshall (Feb. 15, 1980), T.M. Papers, supra note 2, box 247, file 5-7; memorandum from Justice Thurgood Marshall to the Conference (May 6, 1980), T.M. Papers, supra note 2, box 247, file 5-7; letter from Justice Lewis Powell to Justice John Paul Stevens (May 9, 1980), T.M. Papers, supra note 2, box 247, file 5-7.

132. Justice Rehnquist argued that the Occupational Safety and Health Act's directive to ensure that no worker suffered "material impairment of health … to the extent feasible" was so lacking in specific guidance as to constitute an unconstitutionally excessive delegation ofCongress' legislative powers to an administrative agency. Letter from Justice William Rehnquist to Justices Thurgood Marshall and John Paul Stevens (May 9, 1980), T.M. Papers, supra note 2 [hereinafter Rehnquist 1980 Letter].

133. Pub. L. No. 91-596, 84 Stat. 1590 (1988) (codified as amended in scattered sections of 5 U.S.C., 15 U.S.C., 18 U.S.C., 29 U.S.C. & 42 U.S.C.).

134. See Rehnquist 1980 Letter, supra note 132.

135. Memorandum from Justice Thurgood Marshall to the Conference (Jan. 25, 1980), T.M. Papers, supra note 2.

136. Letter from Justice Lewis Powell to Justice Thurgood Marshall (Feb. 8, 1980), T.M. Papers, supra note 2; letter from Justice Potter Stewart to Justice Thurgood Marshall (Feb. 15, 1980), T.M. Papers, supra note 2.

137. Memorandum from Justice John Paul Stevens to the Conference (first draft) (May 6, 1980), T.M. Papers, supra note 2.

138. Memorandum from Justice Thurgood Marshall to the Conference (May 6, 1980), T.M. Papers, supra note 2.

139. Letter from Justice Lewis Powell to Justice John Paul Stevens (May 9, 1980), T.M. Papers, supra note 2.

140. Letter from Justice William Rehnquist to Justices Thurgood Marshall and Lewis Powell (May 9, 1980), T.M. Papers, supra note 2.

141. Letter from Justice Potter Stewart to Justice John Paul Stevens (May 12, 1980), T.M. Papers, supra note 2.

142. Memorandum from Justice Thurgood Marshall to the Conference (May 12, 1980), T.M. Papers, supra note 2.

143. See Memoranda, T.M. Papers, supra note 2, box 247, file 6.

144. Industrial Union Dep't, AFL-CIO v. American Petroleum Inst., No. 78-911 (first draft of majority opinion by Justice John Paul Stevens) (June 17, 1980), T.M. Papers, supra note 2.

145. American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 11 ELR 20736 (1981).

146. Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 5 ELR 20286 (1975).

147. Letter from Justice Potter Stewart to Justice Byron White (Mar. 19, 1975), T.M. Papers, supra note 2.

148. Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, No. 73-1977 (first draft of concurring opinion by Justice Thurgood Marshall) (Apr. 16, 1975), T.M. Papers, supra note 2.

149. Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, No. 73-1977 (first draft of dissenting opinion by Justice Thurgood Marshall) (Apr. 29, 1975), T.M. Papers, supra note 2.

150. Letter from Justice Harry Blackmun to Justice Byron White (Apr. 30, 1975), T.M. Papers, supra note 2.

151. 421 U.S. 60, 5 ELR 20264 (1975).

152. 42 U.S.C. § 7410(f) (1975), amended by 42 U.S.C. § 7410(f) (1988 & Supp. III 1991), ELR STAT. CAA 34.

153. Natural Resources Defense Council v. U.S. Environmental Protection Agency, 478 F.2d 875, 3 ELR 20375 (1st Cir. 1973).

154. Memorandum from Justice William Rehnquist to the Conference (Mar. 13, 1975), T.M. Papers, supra note 2 (emphasis in original).

155. Letter from Justice William Brennan to Justice William Rehnquist (Mar. 18, 1975), T.M. Papers, supra note 2.

156. Union Electric Co. v. U.S. Environmental Protection Agency, 427 U.S. 246, 6 ELR 20570 (1976).

157. Letter from Justice Lewis Powell to Justice Thurgood Marshall (May 12, 1976), T.M. Papers, supra note 2.

158. 427 U.S. at 270-72, 6 ELR at 20576 (Powell, J., concurring).

159. Letter from Chief Justice Warren Burger to Justice Thurgood Marshall (May 24, 1976), T.M. Papers, supra note 2.

160. See, e.g., CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION (1990); Frank Grad, Foreward: A Symposium on the United States Supreme Court's 'Environmental Term' (1991-1992), 43 WASH. U. J. URB. & CONTEMP. L. 3 (1993).

161. 430 U.S. 112, 7 ELR 20191 (1977).

162. Note from "jas" (undated), T.M. Papers, supra note 2, box 267, file 5.

163. 427 U.S. 390 (1976).

164. Letter from Chief Justice Warren Burger to Justice Thurgood Marshall (June 16, 1976), T.M. Papers, supra note 2.

165. Id.

166. 434 U.S. 275, 8 ELR 20171 (1978).

167. United States v. Adamo Wrecking Co., 545 F.2d 1, 7 ELR 20001 (6th Cir. 1976).

168. Letter from Justice Lewis Powell to Justice William Rehnquist (Oct. 31, 1977), T.M. Papers, supra note 2.

169. Pub. L. No. 95-95, 91 Stat. 685.

170. Adamo Wrecking Co. v. United States, No. 76-911 (first draft of majority opinion by Justice William Rehnquist) (Nov. 3, 1977), T.M. Papers, supra note 2.

171. Adamo Wrecking Co. v. United States, No. 76-911 (first draft of dissenting opinion by Justice John Paul Stevens) (Dec. 1, 1977), T.M. Papers, supra note 2.

172. 479 U.S. 481, 17 ELR 20327 (1987).

173. 406 U.S. 91, 2 ELR 20201 (1972).

174. Memorandum from Justice Lewis Powell to the Conference (Nov. 17, 1986), T.M. Papers, supra note 2.

175. See letter from Justice Byron White to Justice Lewis Powell (Nov. 17, 1986), T.M. Papers, supra note 2, box 416, file 11; letter from Justice Sandra Day O'Connor to Justice Lewis Powell (Nov. 18, 1986), T.M. Papers, supra note 2, box 416, file 11; letter from Justice William Rehnquist to Justice Lewis Powell (Nov. 18, 1986), T.M. Papers, supra note 2, box 416, file 11.

176. Letter from Justice Antonin Scalia to Justice Lewis Powell (Nov. 18, 1986), T.M. Papers, supra note 2.

177. Id.

178. See International Paper Co. v. Ouellette, No. 85-1233 (second draft of majority opinion by Justice Lewis Powell) (Dec. 22, 1986), T.M. Papers, supra note 2.

179. 491 U.S. 1, 19 ELR 20974 (1989).

180. Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§9601-9675, ELR STAT. CERCLA 7-61.

181. Written in broad terms, Justice Scalia's draft opinion listed several types of cases over which Congress could not constitutionally create jurisdiction in federal court, which prompted a request from Justice Kennedy that these "hypotheticals" be deleted from the opinion. Letter from Justice Anthony Kennedy to Justice Antonin Scalia (Apr. 4, 1989), T.M. Papers, supra note 2. Justice Scalia agreed to this request. Letter from Justice Antonin Scalia to Justice Anthony Kennedy (Apr. 5, 1989), T.M. Papers, supra note 2.

182. Letter from Justice Byron White to Justice Antonin Scalia (Apr. 11, 1988), T.M. Papers, supra note 2.

183. 451 U.S. 287, 11 ELR 20357 (1981).

184. Ch. 425, 30 Stat. 1151 (current version codified as amended in scattered sections of 33 U.S.C. (1988)).

185. California v. Sierra Club, No. 79-1252 (first draft of concurring opinion by Justice Byron White) (Mar. 16, 1981), T.M. Papers, supra note 2.

186. Letter from Justice William Brennan to Justice Byron White (Mar. 17, 1981), T.M. Papers, supra note 2.

187. 453 U.S. 1, 11 ELR 20684 (1981).

188. See Memorandum from Justice Lewis Powell to the Conference (May 19, 1981), T.M. Papers, supra note 2.

189. 460 U.S. 766, 13 ELR 20515 (1983).

190. Letter from Justice William Brennan to Justice William Rehnquist (Mar. 24, 1983), T.M. Papers, supra note 2.

191. Letter from Justice William Rehnquist to Justice William Brennan (Mar. 25, 1983), T.M. Papers, supra note 2.

192. 494 U.S. 26, 20 ELR 20447 (1990).

193. Pub. L. No. 96-511, 94 Stat. 2812 (codified as amended in scattered sections of 5 U.S.C., 20 U.S.C., 30 U.S.C., 42 U.S.C., & 44 U.S.C.) (1988).

194. Letter from Justice Antonin Scalia to Justice William Brennan (Jan. 18, 1990), T.M. Papers, supra note 2.

195. Letter from Justice Sandra Day O'Connor to Justice William Brennan (Jan. 18, 1990), T.M. Papers, supra note 2.

196. Letter from Justice John Paul Stevens to Justice William Brennan (Jan. 18, 1990), T.M. Papers, supra note 2.

197. Letter from Justice Antonin Scalia to Justice William Brennan (Jan. 22, 1990), T.M. Papers, supra note 2.

198. 482 U.S. 304, 17 ELR 20787 (1987).

199. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, No. 85-1199 (first draft of majority opinion by Justice William Rehnquist) (Feb. 18, 1987) (emphasis added).

200. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 258 Cal. Rptr. 893, 19 ELR 21329 (1989).

201. 405 U.S. 727, 2 ELR 20192 (1972).

202. Sierra Club v. Morton, No. 70-34 (first draft of dissenting opinion by Justice William Douglas) (Feb. 14, 1972), T.M. Papers, supra note 2.

203. Memorandum from Justice William Brennan to the Conference (Mar. 30, 1972), T.M. Papers, supra note 2.

204. 411 U.S. 655, 3 ELR 20401 (1973).

205. Ch. 425, § 13, 30 Stat. 1151, 1152 (current version at 33 U.S.C. § 407 (1988)).

206. United States v. Standard Oil Co., 384 U.S. 224 (1966).

207. Id.

208. 411 U.S. at 675, 3 ELR at 20407 (Blackmun & Rehnquist, JJ., statement)

209. 474 U.S. 494, 16 ELR 20278 (1986).

210. Midlantic Nat'l Bank v. New Jersey Dep't of Envtl. Protection, No. 84-801 (first draft of majority opinion by Justice William Rehnquist) (Nov. 15, 1985), T.M. Papers, supra note 2.

211. Midlantic Nat'l Bank v. New Jersey Dep't of Envtl. Protection, No. 84-801 (first draft of dissenting opinion by Justice Lewis Powell) (Nov. 26, 1985), T.M. Papers, supra note 2.

212. Letter from Justice John Paul Stevens to Justice William Rehnquist (Dec. 5, 1985), T.M. Papers, supra note 2.

213. Id.

214. Id.

215. 474 U.S. at 507, 16 ELR at 20281.

216. 463 U.S. 680, 13 ELR 20664 (1983).

217. Ruckelshaus v. Sierra Club, No. 82-242 (first draft of dissenting opinion by Justice William Rehnquist) (June 20, 1983), T.M. Papers, supra note 2.

218. Letter from Chief Justice Warren Burger to Justice John Paul Stevens (June 20, 1983), T.M. Papers, supra note 2.

219. Ruckelshaus v. Sierra Club, No. 82-242 (second draft majority opinion by Justice John Paul Stevens) (June 21, 1983), at 15 n.22, T.M. Papers, supra note 2 (emphasis in original).

220. Letter from Chief Justice Warren Burger to Justice John Paul Stevens (June 21, 1983), T.M. Papers, supra note 2.

221. Ruckelshaus v. Sierra Club, No. 82-242, slip op. at 5 n.7 (U.S. July 1, 1983).

222. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 n.7, 13 ELR 20664, 20665 n.7 (1983).

223. 412 U.S. 541, 3 ELR 20684 (1973).

224. Pub. L. No. 91-604, 84 Stat. 1676.

225. In light of the ultimate outcome of the case, it is ironic that the D.C. Circuit had affirmed the district court in a per curiam decision without issuing an opinion. Sierra Club v. Ruckelshaus, 344 F. Supp. 253, 2 ELR 20262 (D.D.C. 1972), aff'd per curiam without opinion 2 ELR 20656 (D.C. Cir. 1972).

226. Fri v. Sierra Club, No. 72-804 (first draft majority opinion by Justice Potter Stewart) at 20 (May 29, 1973), T.M. Papers, supra note 2.

227. Note from "lms" to Justice Thurgood Marshall (undated), T.M. Papers, supra note 2.

228. Id.

229. Fri v. Sierra Club, No. 72-804 (first draft of dissenting opinion by Justice William Douglas) at 1 (June 5, 1973), T.M. Papers, supra note 2.

230. Id. at 1, 2.

231. Letter from Justice Thurgood Marshall to Justice Potter Stewart (June 5, 1973), T.M. Papers, supra note 2.

232. Id.

233. Memorandum from Justice Potter Stewart to the Conference (June 7, 1973), T.M. Papers, supra note 2.

234. Id.

235. In 1968, Justice Douglas published a five-page dissent in Biggers v. Tennessee, 390 U.S. 404 (1968), a criminal case affirmed by an equally divided Court. The Marshall papers show that Justice Douglas first circulated a memorandum to the other Justices that cited four previous cases where exceptional circumstances were said to justify publication of such a dissent. Memorandum from Justice William Douglas to the Conference (Mar. 18, 1968), T.M. Papers, supra note 2, box 39.

236. Letter from Justice Potter Stewart to Justice Byron White (May 21, 1975) (regarding White v. Regester, No. 73-1462), T.M. Papers, supra note 2, box 146, file 14.

237. 461 U.S. 190, 13 ELR 20519 (1983).

238. Letter from Justice Byron White to Chief Justice Warren Burger (Jan. 26, 1983), T.M. Papers, supra note 2.

239. 42 U.S.C. §§ 2011-2021, 2022-2286i (1988 & Supp. III 1991).

240. Letter from Justice Byron White to Chief Justice Warren Burger (Jan. 26, 1983), T.M. Papers, supra note 2.

241. Memorandum from Chief Justice Warren Burger to the Conference (Jan. 27, 1983), T.M. Papers, supra note 2.

242. 461 U.S. at 190, 13 ELR at 20519.

243. See J. William Futrell, The Ungreening of the Court, ENVTL. F., Jan./Feb. 1992, at 12; see also William E. Kovacic, The Reagan Judiciary and Environmental Policy: The Impact of Appointments to the Federal Courts of Appeals, 18 B.C. ENVTL. AFF. L. REV. 669 (1991).

244. These data are based on 90 environmental cases identified by examining the index to the Bureau of National Affairs' Environment Reporter for the relevant period. In order to avoid double counting, cases that involved multiple parties and multiple petitions for certiorari were treated as one case.

245. See, e.g., City of Philadelphia v. New Jersey, 437 U.S. 617, 629, 8 ELR 20540, 20544 (1978) (Rehnquist, J., dissenting); Pacific Gas & Elec. Co. v. California Energy Comm'n, 461 U.S. 190 (1983).

246. The Marshall papers indicate that even Justice Rehnquist can now serve as a force of moderation. In Hallstrom v. Tillamook County, 493 U.S. 20, 20 ELR 20193 (1989), Justice Rehnquist convinced Justice O'Connor to remove language from her majority opinion (11 days before it was released) to avoid holding that a failure to comply with notice requirements for citizen suits was a jurisdictional defect that could be raised on appeal or as a basis for setting aside a final judgment. Letter from Justice William Rehnquist to Justice Sandra Day O'Connor (Oct. 27, 1989), T.M. Papers, supra note 2, box 497, file 4.

247. 110 S. Ct. 3177, 20 ELR 20962 (1990).

248. Memorandum from Justice Antonin Scalia to the Conference (June 5, 1990), T.M. Papers, supra note 2, box 509, file 8.

249. Letter from Justice John Paul Stevens to Justice Antonin Scalia (June 5, 1990), T.M. Papers, supra note 2, box 509, file 8.

250. Lujan v. National Wildlife Fed'n, No. 89-640 (first draft of partial concurrence by Justice Sandra Day O'Connor) (June 22, 1990), T.M. Papers, supra note 2, box 509, file 9.

251. Lujan v. National Wildlife Fed'n, No. 89-640 (fifth draft of majority opinion by Justice Antonin Scalia) (June 25, 1990), T.M. Papers, supra note 2, box 509, file 9.

252. Letter from Justice Sandra Day O'Connor to Justice Antonin Scalia (June 25, 1990), T.M. Papers, supra note 2, box 509, file 9.

253. Pub. L. No. 99-499, 100 Stat. 1613.

254. Memorandum from Justice John Paul Stevens to the Conference (June 24, 1980), T.M. Papers, supra note 2.

255. Id.

256. Republic Steel Corp. v. OSHA, 448 U.S. 909 (1980).

257. Memorandum from Justice William Rehnquist to the Conference (Sept. 3, 1981), T.M. Papers, supra note 2.

258. 452 U.S. 264, 11 ELR 20569 (1981).

259. Memorandum from Justice William Rehnquist to the Conference (Sept. 3, 1981), T.M. Papers, supra note 2.

260. Id.

261. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 U.S. 20110 (1971).

262. Note from "A.W." to Justice Thurgood Marshall (Mar. 3, 1971), T.M. Papers, supra note 2. The reference is to the Court's decision in Citizens to Preserve Overton Park v. Volpe.

263. Memorandum from Justice Byron White to the Conference (June 6, 1983) (regarding Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto. Ins. Co., No. 82-354), T.M. Papers, supra note 2. Justice White was seeking to persuade his colleagues to go along with his draft majority opinion finding that the National Highway Safety Administration had not adequately explained its decision to revoke both the airbag and the seatbelt standards, even though the Justices at conference had voted only to reverse the revocation of the airbag standard.

264. 410 U.S. 113 (1973).

265. 410 U.S. 179 (1973).

266. Memorandum from Justice Harry Blackmun to the Conference (Jan. 16, 1973), T.M. Papers, supra note 2, box 98, file 10.

267. Id.

268. Letter from Justice William Brennan to Justice Harry Blackmun (Jan. 17, 1973), T.M. Papers, supra note 2, box 98, file 10.

269. In a letter to the marshal of the Court complaining about the legibility of some of the transcripts, Justice Blackmun disclosed that he reads the transcripts of oral argument in all cases for which he has been assigned the opinion. Letter from Justice Harry Blackmun to Mr. Alfred Wong, Marshal, the Supreme Court (May 23, 1980), T.M. Papers, supra note 2, box 241, file 7.

270. Memorandum from Chief Justice Warren Burger to the Conference (Oct. 22, 1979), T.M. Papers, supra note 2, box 241, file 3.

271. Letter from James E. O'Neill, Acting Archivist of the United States, to Chief Justice Warren Burger (Oct. 18, 1979), T.M. Papers, supra note 2, box 241, file 3.

272. Memorandum from Chief Justice Warren Burger to the Conference (Oct. 22, 1979), T.M. Papers, supra note 2, box 241, file 3.

273. Letter from James E. O'Neill, Acting Archivist of the United States, to Chief Justice Warren Burger (Feb. 25, 1980), T.M. Papers, supra note 2, box 241, file 3.