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Nervously waiting / May 16, 2019
A few weeks ago, speculation was rampant that we might soon have a Supreme Court ruling in Virginia Uranium v. Warren, the long-running lawsuit to overturn Virginia’s uranium mining ban and open the floodgates for yellowcake extraction upriver from Halifax in Pittsylvania County. Virginia Uranium Inc., after seeing its lawsuit fail twice at the lower federal level, succeeded in convincing the Supreme Court to grant an appeal. Justices heard oral arguments back in November, and we haven’t heard much about the case since then.

Why did people expect a decision sometime around the end of April? Two reasons: first, rulings are frequently announced on days when justices have scheduled arguments, and there were a bunch of days in late April that fit that criteria. Second, Virginia Uranium v. Warren was heard early in the Supreme Court’s October term and it is one of only a handful of cases on the fall docket still to be decided. Of course, this could mean something, or it could mean nothing at all. People way above my pay grade say it’s a fool’s errand to try to read the tea leaves of the Supreme Court, which is precisely why I’m writing this column and they’re not.

So consider yourself warned. But while we wait for the actual experts to weigh in — and while they wait for the deciders, the nine members of the Supreme Court, to reveal their thinking on the merits of VUI’s lawsuit — let’s grant inquiring minds the freedom to engage in a little speculative thinking.

First off, a lot of people were surprised when the Supreme Court decided to take up this case in the first place. Virginia Uranium is asking the Supreme Court to do some pretty remarkable things with a ruling in its favor. A successful outcome for the company will upend the established order between states and the federal government that governs how uranium mining is regulated in this country, obliterating the notion of federalism, the legal doctrine that says rights not clearly assigned to the federal government belong to the states under our constitutional order. Federalism is one of the most important principles (if not THE most important principle) of conservative jurisprudence, and our current Supreme Court is said to be nothing if not “conservative.” Yes, the scare quotes have been put there for a reason, but hold that thought for now.

VUI’s lawsuit is remarkable in a second respect: the company is essentially asking the Supreme Court to divine the thinking of the Virginia General Assembly way back in 1983 when lawmakers originally enacted the mining moratorium. The central question in Virginia Uranium v. Warren is whether the state overstepped its authority; VUI claims Virginia infringed on the job of federal regulators to determine whether mining can be done safely without spewing radioactive material all over the place, a task assigned to the feds under the Atomic Energy Act. In response, the Virginia Attorney General’s Office argues that the legislature had other, perfectly legitimate reasons to stop uranium mining, and besides, who is in a position at this point to say exactly what motivated delegates and senators when they voted on the ban almost four decades ago? From the way oral arguments went down in November, it seems as though most justices found this argument persuasive."Is this going to require deposing every single legislative member?” asked Sonia Sotomayor, one of the court’s most liberal members, of the lawsuit. Neil Gorsuch, an arch conservative on the high court, said Virginia Uranium’s argument raised “methodological, epistemological, and federalism questions” and he was reluctant to try “guessing what the motivations of a state legislature are.”

So … sounds good, right? It sure sounds like Virginia Uranium had a bad day in court, which is an excellent day for Halifax County. But something about this case bugs me to no end, and it’s this: Virginia Uranium should never have gotten this far in the first place. With the case still alive and kicking at the Supreme Court, strange things can happen, along the lines of a patently ridiculous reality TV star becoming president of the United States, or the New Orleans Pelicans getting the top pick in the NBA draft on six-percent odds. In this instance, we happen to be pondering existential stakes for Halifax County and Southside Virginia, so you’ll pardon me for obsessing over something that may seem superficially unlikely.

And then there’s this: actual unlikely things are happening on a regular basis right now at the Supreme Court. Again, this stuff is all way above my level, but in recent days the court has thrown out a four-decade-old precedent in an obscure California case involving sovereign immunity, about which I knew exactly nothing last week but now can cite the Constitutional amendment from which the concept flows (that would be the 11th, for those of you keeping score at home.) Next thing you know, I’ll be like one of those Tea Partiers who used to keep a pocket Constitution in their pants, until all those copies fell into the toilet. Point is, you don’t have to be constitutional scholar to have a general sense of when the Supreme Court is bending the law to support a predetermined outcome, rather than the other way around.

Since my understanding of the Supreme Court’s rightward drift comes from what I read, I’ll leave you with this: someone who does know his stuff is Rhode Island Sen. Sheldon Whitehouse, who wrote a remarkable piece for Slate around the end of April that ought to send a chill down the spine of anyone who opposes uranium mining in Southside. In his essay, Whitehouse focused on the hostility of the court’s five-member conservative majority to worker rights, as borne out by an utterly striking record of court rulings that favor corporate interests. Remember those guys? They went to the Trump Justice Department and asked for help with Virginia Uranium v. Warren, leading the department to intervene at the Supreme Court on the company’s behalf. Meanwhile, Trump has named two extreme conservatives as justices, giving the court its new, activist right-wing majority. When Neil Gorsuch said he was concerned that the uranium lawsuit posed “methodological, epistemological, and federalism questions,” was he being scholarly, or was he just being cute?

Here’s Sheldon Whitehouse, writing in Slate:

The Supreme Court’s conservative bloc delivered yet another 5–4 decision helping corporate interests this week. You may not have heard about it, as these 5–4 pro-corporate rulings are now issued like clockwork. A distinct pattern has emerged among the court’s “partisan” rulings, where the Roberts Five render a 5–4 decision attracting no support from the more liberal justices. This one comes at the expense of American workers ….

There is an established pattern of bias toward the corporate elite, inconsistent with Roberts’ famous assertion from his confirmation hearing that the justices are just “calling balls and strikes.” In partnership with the American Constitution Society, I just published a review of Chief Justice John Roberts’ tenure through 2018 describing this pattern. Republican appointees have delivered for corporate or conservative interests in 73 partisan, 5–4 decisions during the Roberts era, with big Republican donor interests winning 73 out of 73 decisions. More tellingly, the Roberts Five often trample purportedly conservative judicial principles — respect for states’ rights, textualism, judicial restraint, stare decisis, even originalism — when those principles stand in the way of an outcome they want. In nearly 55 percent of those 73 decisions, one or more of those traditionally conservative judicial principles was ignored ....

Equality before the law is a fundamental tenet of our democracy. Courts and juries have a constitutional role in checking the power of wealthy elites who can push ordinary people around, and who are often not checked by legislatures and executive officials. While the chief justice has recently been inclined toward grand public gestures defending his court’s impartiality, the unmistakable pattern of partisan 5–4 decision leads to an inescapable conclusion: that the Roberts Five are pursuing political outcomes, and are willing to violate basic principles of American governance to execute the right-wing, corporate Republican game plan.

Go read the whole thing .....

Workers today, all Southside Virginians who don’t own stock in VUI tomorrow?

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