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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

An Earth Day Appeal for the SCOTUS Nominee

On this 40th Earth Day, as President Obama prepares to nominate a new Supreme Court justice, environmentalists are perusing the records of prospective nominees.
Retiring Justice Stevens replaced the most ardent champion of the environment in the High Court’s history, Justice William O. Douglas, so environmentalists can’t be blamed for thinking of this seat as one that ought to be filled by someone who won’t allow corporate profits to trump environmental concerns. The records of all of the prospective nominees don’t reveal a lot about their environmental concerns per se — no one on the latest ‘short lists’ jumps out as a great champion of the environment. But perhaps the next best indicator is their decision-making with respect to the exercise of corporate power over the public interest.
Justice Douglas’s commitment to the environment would be impossible to match for any nominee. As the longest-serving justice in the history of the High Court, Justice Douglas ruled in favor of the environment at every opportunity. Nominated by FDR, he was also the youngest justice ever to be sworn in — at the age of forty. He reportedly hiked the entire Appalachian Trail, from Georgia to Maine. In his dissenting opinion in the landmark environmental law case, Sierra Club v. Morton, 405 U.S. 727 (1972), he argued that “inanimate objects,” including trees have legal standing in lawsuits. An excerpt:

Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole — a creature of ecclesiastical law — is an acceptable adversary and large fortunes ride on its cases…. So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes — fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it.

It was the leadership of Justice Douglas that saved the Buffalo River in Arkansas and the Chesapeake and Ohio Canal. He also swayed the High Court to preserve the Red River Gorge in eastern Kentucky, which is Holy Ground to folks from that part of the country. A trail in the Gorge is named in his honor, as is The William O. Douglas Wilderness, adjoining Mount Rainier National Park in Washington state, along with Douglas Falls in the Appalachian Mountains of North Carolina. There is a lot more that can be said about the visionary leadership of Douglas on behalf of the environment, but environmentalists would be happy with a justice with half his phenomenal commitment to mother earth.
Here’s hoping the President will keep William O. Douglas in mind when he nominates his choice to fill the seat once occupied by the justice who did more than any other to protect America’s natural heritage.

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