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Wednesday, October 06, 2004

Recent judicial developments

• This one isn't specific to regulatory policy, but it's one of those developments that could have scary consequences across the board: the House voted in favor of an amendment that would split the Ninth Circuit Court of Appeals into three separate judicial circuits -- a smaller 9th Circuit (California, Hawaii, Guam, and the No. Mariana Islands), the new 12th Circuit (AZ, NM, ID, MT -- sure to be conservative), and the new 13th Circuit (AK, OR, WA). (The House amendment is attached to a Senate bill on judicial management issues, S.878. Download the text of the amendments here and scroll to the one numbered (4).)

  The circuit courts are particularly important in judicial developments because the Supreme Court grants cert. on so few cases -- the appeals courts are quite often the last word on many federal legal issues for the states in the circuits. Keep in mind that conservative judges have been issuing opinion after opinion challenging the scope and reach of federal power to serve the public interest. This circuit reconfiguration would limit the geographic reach of one of the few circuits bucking the conservative trends. Since most appeals court opinions are decided by three-judge panels, the new split and distribution could trend all three new circuits in the direction of a more conservative judicial philosophy. This development is worth watching for anyone who believes the federal government has an important role to play in serving the public interest.

• The Sierra Club is reporting an 11th Circuit decision that the Bush administration failed to prevent the state of Florida from doing enough to protect Florida waters from pollution.

• The Supreme Court denied cert. in a case challenging the EPA's ability to regulate arsenic in drinking water. Cert. denials do not have any legal meaning of their own, but the consequence is that the D.C. Circuit's decision upholding the consitutionality under the Commerce Clause of the Safe Drinking Water Act authority for regulating arsenic will, for now, be the last word.