Navy Wins, Whales Lose at High Court

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Correction: An earlier version of this post stated that the Justices voted 5-4, in favor of the Navy. The vote was 6-3, with Justices Alito, Scalia, Thomas and Kennedy joining an opinion written by Chief Justice Roberts. Justice Breyer filed an opinion concurring in part and dissenting in part, in which Stevens joined as to the concurrence. Ginsburg and Souter dissented outright.

Having grown up in Minnesota — a land-locked, lake-ridden territory next to Canada — the Law Blog, unlike the Law Blog’s editor, has no whale-watching tales from our youth.



So let’s just get to the news. In October, the High Court heard arguments in a case pitting the U.S. Navy against, essentially, whales off the California coast. Today, in a 5-4 decision, the whales lost. Here’s the opinion. The Court, in its first decision of the term, ruled the Navy needs to conduct realistic training exercises to respond to potential threats by enemy submarines.

The dispute centered on a series of Naval training exercises involving the use of sonar that began in February 2007 and are scheduled to end in January. In March of last year, the Natural Resources Defense Council filed suit in federal court in California to stop or modify the use of sonar, which can hurt sea life.

Last month, we mentioned speculation that the Court may not split down its normal ideological lines. At oral argument, Justice Breyer wondered aloud why the parties hadn’t settled. “You’re asking us to figure it out,” Breyer said, adding: “The whole point of the armed forces is to hurt the environment . . . on a bombing mission, do they have to prepare an environmental impact statement?”

So much for our predictions. Chief Justice Roberts wrote the majority opinion, which was joined by Justices Alito, Kennedy, Scalia and Thomas.

Photo: Getty Images

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Comments

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Actually, your prediction was just fine. It’s your current reporting that’s misguided. The operative decision to invalidate the injunction is 7-2. Breyer concurred in that decision, and Stevens joined it. Only Souter and Ginsburg were opposed.

Breyer went on and called for modification of the stay order, and he dissented from the majority’s refusal to do so. But Stevens did *not* join that part of Breyer’s opinion. So even that decision was 6-3, not 5-4.

I’m sure there will be plenty of closely divided, ideological decisions from the Court this Term. We don’t need to manufacture them this early.
Comment by George Sutherland - November 12, 2008 at 11:28 am

Is there a special place where 5/9ths of the US Supreme Court judges go to have their ability to draw rational conclusions from presented evidence suppressed or removed?
Comment by Rob - November 12, 2008 at 11:35 am

Actually, Rob, 7 justices agreed that the district court’s injunction should be vacated. Don’t let the “5-4″ parroting get you into Scalia Derangement Syndrome. Justices Breyer and Stevens agreed that the injunction should be vacated.
Comment by Willis Van Devanter - November 12, 2008 at 11:40 am

Regardless of the exact degree of the plurality, this decision is alarmingly akin to that in the DC gun ban case. That even 2 justices would side against national security, just as even if only that number saw even the barest hint of an argument that the 2nd Amdt. doesn’t simply mean what it says, is shocking and evidence of too much time spent in ACLU boardrooms instead of in the real world west of Riverside Drive. “Inmates, here, take the keys to the asylum!”
Comment by Herb Spencer - November 12, 2008 at 11:54 am

I hope a big whale comes up out of the blue and bites some of those Navy *******s!
Comment by Chris - November 12, 2008 at 12:46 pm

Chris,
Those Navy *holes are the reason you are free to post such stuff as you did. If there was any real evidence tha sonar does actually harm whales, then a diferent decision would have been reached…
Comment by Mousse - November 12, 2008 at 12:58 pm

chris, it is now time to move out of your mothers basement…and get a job. loser!
Comment by trey_trey - November 12, 2008 at 1:01 pm

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