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Judge Ketanji Brown Jackson wades into questioning over murky wetlands dispute as Supreme Court opens new term

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WASHINGTON — The Supreme Court opened its nine-month term Monday by hearing a conservative challenge to the federal government’s authority to regulate wetlands under a landmark environmental protection law, with Judge Ketanji Brown Jackson asking multiple questions on her first day on the bench.

Jackson, the first black woman to serve on the court, was quick to ask a series of questions early on in the nearly two-hour arguments that showed sympathy for maintaining extensive federal authority over wetlands.

On a notoriously complex issue regarding the scope of the federal Clean Water Act, Jackson seemed eager to get to the root of the problem, and at one point said, “Let me try to convey some relief.” She later politely apologized for asking a follow-up question after a long back-and-forth with a lawyer for Idaho landowners Chantell and Mike Sackett, who want to build on land that the government considers a wetland. .

Jackson’s manner of interrogation was similar to that of the court’s two other liberal judges, Elena Kagan and Sonia Sotomayor. The conservative judges seemed more skeptical about broad federal power, but it was unclear exactly how the court would rule based on their questions.

Jackson was nominated by President Joe Biden and was sworn in over the summer. The plea was also the first time in history that four female judges sat together on the couch.

Jackson replaced fellow Liberal Stephen Breyer, who retired in June. She is one of three liberals on the nine-court court, who looks set to continue her conservative course in the new term.

Judge Ketanji Brown Jackson is accompanied by Chief Justice John Roberts after her formal inauguration ceremony at the Supreme Court on Friday.J. Scott Applewhite / AP

The court has already agreed to hear key cases that could end the consideration of race in college admission and make it easier for Republicans to impose voting restrictions ahead of the 2024 presidential election. With a solid 6- 3 conservative majority, Jackson is unlikely to be a major voice in many of the big cases.

For the first time since the Covid pandemic hit Washington in March 2020, members of the public allowed in the packaged courtroom for Monday’s case as the risk-averse court returns somewhat to pre-pandemic proceedings, even as public access to the building remains restricted.

The judges are back in action after a tumultuous end to the court’s most recent term in which the conservative majority overturned the historic Roe v. Wade ruling that gave federal protections to abortion rights, leading some to question the court’s legitimacy.

The court’s conservative majority is skeptical of broad claims about the federal agency’s jurisdiction, which could align with arguments advanced in Monday’s case. In the court’s term that ended in June, the judges issued a major ruling that limited the Environmental Protection Agency’s ability to tackle climate change by regulating carbon emissions under the Clean Air Act.

This time the same agency is in court, with the Clean Water Act, aimed at protecting water quality, now under scrutiny.

It also sees the return of the Sacketts to the Supreme Court after the judges ruled in their favor in a previous case in 2012. considered a protected wetland, meaning the land is subject to federal jurisdiction and building on it requires a permit.

The first case concerned whether the Sacketts could challenge an EPA compliance order in court after filling the affected area with gravel and sand without obtaining a permit. The battle, which began in 2007, continued over whether the land was a wetland at all.

The Sacketts turned to the Supreme Court for a second time after the 9th US Circuit Court of Appeals, headquartered in San Francisco, ruled in favor of the federal government last year in its decision that the area formed a wetland.

The law defining a wetland — vital to property developers and other business interests — has long been confused and unresolved when the Supreme Court ruled in an earlier case on the matter in 2006. Subsequently, four judges said the Clean Water Act covers land with a “continuous surface connection” to a waterway, but there was no clear majority. Judge Anthony Kennedy, who gave the fifth vote in the 5-4 ruling, came up with his own test, saying the law provided jurisdiction over wetlands with a “major connection” to a waterway. The new case gives the court a chance to review the earlier ruling, with some observers believing the majority would embrace the tougher test proposed by the four judges in 2006.

Successive presidential administrations have sought to bring clarity to the law, with Democrats generally favoring more federal power and Republicans, backed by corporate interests, saying the Clean Water Act’s powers should be limited.

The Biden administration is currently finalizing a new federal rule. In court documents, Attorney General Elizabeth Prelogar, who represents the administration, said Kennedy’s “significant nexus” test is preferable because it “encompasses those adjacent wetlands that significantly affect the chemical, physical and biological integrity of the country’s traditional navigable waters.” to influence.”

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