Jurisprudence

Brett Kavanaugh Missed His Chance to Kill the Dusky Gopher Frog

The Supreme Court’s conservatives don’t have the votes to kneecap the Endangered Species Act. Yet.

Side-by-side of Brett Kavanaugh on Thursday and a dusky gopher frog.
Brett Kavanaugh and a dusky gopher frog. Photos by Win McNamee/Getty Images and John A. Tupy/Western Carolina University.

Just before the Supreme Court kicked off its new term Monday morning, Solicitor General Noel Francisco popped into the courtroom to make the rounds. Francisco beamed as he greeted spectators near the front of the room, then glad-handed attorneys with a chummy bonhomie. He had good reason to smile. Francisco will seize control of Robert Mueller’s Russia investigation if Donald Trump fires Deputy Attorney General Rod Rosenstein, allowing him to hobble or scrap the probe. Last term, Francisco turned the solicitor general’s office into an organ of the conservative legal movement, scoring major blows against unions and voting rights while bolstering expansive presidential power. Now, with Brett Kavanaugh’s confirmation looming, Francisco is poised to continue his extraordinary winning streak, persuading a new five-justice conservative majority to create a brave new world of reactionary jurisprudence that will entrench Republican power for decades.

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It all was set to start on Monday with a frog.

Not just any frog, though—the dusky gopher frog, a charismatic little critter that, like Roe v. Wade, is teetering on the edge of extinction. There are only about 135 dusky gopher frogs left in the wild, and they all live near a small pond in Mississippi. The U.S. Fish and Wildlife Service has plans to expand the frog’s territory into neighboring Louisiana. Their efforts spurred a lawsuit that pits the timber industry against the Endangered Species Act in a case that was supposed to give Kavanaugh his first opportunity to kneecap environmental regulations. As his nomination remains stalled in the Senate, however, Weyerhaeuser v. Fish and Wildlife Service may evenly divide the court and produce a stalemate that buys the little frog an unexpected shot at survival.

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Weyerhaeuser reads like a case designed to drive conservatives into a blind rage, and it has done precisely that. Fox & Friends produced a segment on the issue that was so misleading it spurred the Fish and Wildlife Service to issue a rebuttal. A lower-court judge was so incensed by her colleagues’ decision in favor of the FWS that she accused them of “play[ing] dead” just like the frog. The case began in 2012, when the FWS designated a swath of Louisiana land as “essential critical habitat” for the species. It doesn’t live there now, but it used to, and the land contains rare “ephemeral ponds” necessary for the frog to breed. The FWS asserted that, with “reasonable efforts,” the area can be restored to suit the species’ needs.

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Part of that land is leased by Weyerhaeuser, a timber company that would prefer to harvest the trees for profit. It sued the FWS, arguing that the area could not be “essential critical habitat” for the frog because it currently lives in other places and could not occupy the land in question without improvements. The 5th U.S. Circuit Court of Appeals ruled against Weyerhaeuser, deferring to the Fish and Wildlife Service’s interpretation of the word “habitat.” That decision was doubly infuriating to conservatives because it combined environmental preservation (bad) with judicial deference to a federal agency (even worse).

The 5th Circuit’s decision also happens to be correct under a straightforward reading of the Endangered Species Act. As Justice Elena Kagan pointed out to Timothy Bishop, who represents Weyerhaeuser, the anti-frog argument makes little sense. It’s “counterintuitive,” she told Bishop, that the law “would prefer extinction of the species to the designation of an area which requires only certain reasonable improvements in order to support the species.” And it “does not seem a result that’s demanded at all by the statutory language,” since the ESA “contemplates that habitats will exist even beyond the areas where a species currently resides.” Indeed, the law defines “critical habitat” as areas both “within” and “outside” the “geographical area occupied by the species.” There’s no textual basis on which to conclude that land unoccupied by the dusky gopher frog today cannot be designated a critical habitat .

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Justice Samuel Alito was not only unconvinced—he was irritated by Kagan’s questions. “Now this case is going to be spun … as a choice between whether the dusky gopher frog is going to become extinct or not,” he said—a clear rebuke to Kagan. “We’ve already heard questions along this line.” But that, he insisted, is “not the choice at all.” The real question is “who should pay for the preservation of this public good.” In other words, why should a corporation suffer just because some tree-huggers in the federal government want to keep this frog alive?

“Now it may be very difficult for a lot of people to shed tears for a big corporation like the one in this case,” Alito continued. But imagine Weyerhaeuser were “a family farm” instead. Wouldn’t it be tragic if Old Macdonald couldn’t raise his ducks because the dusky gopher frog had to breed in his ephemeral ponds?

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Justice Stephen Breyer, always eager to play peacemaker, tried to bridge the gap between Kagan and Alito by identifying what, exactly, Weyerhaeuser would need to do to let the frog live on its land. (Or let somebody else do: Typically, a corporation just invites an environmental group to figure it out.) Could the FWS ask a landowner to “drain the swamp?” Breyer asked twice, with no apparent sense of irony. Or “make a canopy?” Deputy Solicitor General Edwin Kneedler, defending the FWS, asserted that the landowners need only make “reasonable efforts.” That spurred Justice Neil Gorsuch to pester him about the phrase. “Where do you get ‘reasonable efforts’ in the statute?” he demanded. “Can you show me where?” Gorsuch then answered his own question—“It’s not there!”—with a triumphant smirk.

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There’s little doubt that Chief Justice John Roberts and Justice Clarence Thomas will side against the FWS with Alito and Gorsuch. But without Kavanaugh’s fifth vote, they’ll still lose: So long as the liberal justices vote as a bloc, the case will deadlock 4–4, leaving the 5th Circuit’s pro-frog ruling in place. Kavanaugh was supposed to be on the court by now, but late-breaking sexual assault allegations have held up his confirmation. That delay may have saved the dusky gopher frog from annihilation.

Francisco wasn’t the only conservative celebrity in the courtroom on Monday. Ginni Thomas was also present in the seats reserved for friends and family of the justices. A Republican activist and consultant who’s married to Justice Clarence Thomas, Ginni is a fierce defender of both Trump and Kavanaugh. Monday’s arguments may be some of the last before Kavanaugh joins the court, empowering Thomas to turn his once-fringe views into the law of the land. Was Ginni there to witness the final days of her husband’s marginalization before he reshapes the court in his image? Like Francisco, she had every reason to smile. The dusky gopher frog may live. But nearly every liberal precedent of the last century will soon be on death’s door.

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