The honeymoon of consensus on the Roberts Court is over. The decision in the Rapanos v. U.S. federal wetlands jurisdiction case marked the end of what seemed, at least on first impression, a marked departure from the Rehnquist Court. Congress and the U.S. Army Corps of Engineers should now step in and bring order to the mess created by the Supreme Court’s spat over property rights and regulation.
The reality that Chief Justice John Roberts and Justice Samuel Alito are on the conservative end of the teeter-totter, which is now the best way to characterize this court, is obvious from the Rapanos decision. In that case, the court handed down a 4-1-4 plurality decision written by Justice Antonin Scalia and joined in by Roberts, Alito and Justice Clarence Thomas. The dissenters, led by John Paul Stevens, included David Souter, Ruth Bader Ginsburg and Stephen Breyer. Justice Anthony Kennedy staked out the middle ground, apparently taking retired Justice Sandra Day O’Connor’s position as the key swing vote.
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