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Order in the court / June 19, 2019
Well, it turns out that Southside Virginia’s nightmare scenario at the Supreme Court — that justices would go wild and bat down Virginia’s ban on uranium mining — did not come to pass on Monday. That’s when the justices finally issued their ruling in Virginia Uranium v. Warren, the case where the Pittsylvania County mining operation sought the court’s help in defeating the decades-old state moratorium on digging up radioactive rock upstream from us. To advance all the way to the Supreme Court, the company had to make ponderous, pregnant arguments about the meaning of the federal Atomic Energy Act and the limits of state regulatory authority over the nuclear industry. In response to this challenge, justices wrote three separate opinions — all adding up to a 6-3 decision against VUI — that offer a great deal of legal harrumping but no real guidance on the fundamental question of when the high court should (or will) strike down contentious state laws. The outcome does at least settle the big matter at hand for our region. I’ll take it.

The opinions, for those scoring at home (a great old Keith Olbermann Sportscenter joke), run as follows: the main opinion, written by Associate Justice Neil Gorsuch and joined by fellow conservative jurists Clarence Thomas and Brett Kavanaugh; a concurring opinion that differs on the scope of judicial review and legislative intent, written by Ruth Bader Ginsburg and joined by fellow liberals Elena Kagan and Sonia Sotomayor; and the dissenting view, penned by Chief Justice John Roberts and joined by Samuel Alito, a conservative, and Stephen Breyer, who occupies the left-center position on the court spectrum. (If centrism means anything at all, Breyer is probably closest of any justice to owning this particular slot.) Out of this cacaphony of voices, the upshot is that the Court did almost nothing to tip its hand on the direction it may take in similar future cases. All we really know is that Virginia Uranium’s claim wasn’t ultimately strong enough to convince the court to do anything earthshaking. Which begs the question, raised many times before in this space, of why the justices took this case on to begin with.

I suppose that mystery will have to go unsolved, just as the Supreme Court ended up all over the map on the pivotal question of statutory interpretation — that is, how the Court should view the fulsome legislative product when considering whether to strike down laws it may not like. The court’s conservative majority rode to power on the strength of the argument — thumped incessantly by right-wing politicians — that prior Supreme Courts had engaged in judicial activism in interpreting the law of the land. In what looms as a case of “you ain’t seen nothing yet,” today’s majority conservative court has already produced more than its fair share of politically convenient rulings that upend longstanding precedent, with more surely to come. It turns out, though, that Virginia Uranium v. Warren won’t be one of those cases that leaves scholars (and laypeople) shaking their heads. In one little noticed 5-4 decision back in May, also involving a question of state sovereignty in which the conservative bloc junked a piece of jurisprudence that reigned for 40 years, Justice Breyer asked in his sharply-worded dissenting opinion, “which cases the court will overrule next.” So far, the answer to this question does not involve Southside Virginia — not yet, any way.

It’s not especially surprising that the court would issue a messy decision in a case that had no business ever advancing as far as it did. You can almost feel the justices grasping for straws in explaining why they heard Virginia Uranium’s appeal in the first place: Gorsuch, Thomas and Kavanaugh making the pedantic argument that legislative intent should never factor into the court’s interpretation of legislative action, an approach that potentially would give justices the freedom to strike down laws on the basis of every uncrossed “t” and undotted “i”; Ginsburg, Kagan and Sotomayor pushing back against this mischief; and Roberts, the chief justice and easily one of the most corporatist judges in Supreme Court history, finding straight-up in favor of the mining corporation. (I have no idea what Breyer thinks he was doing.) The five conservatives on the court divided 3-2, the liberals split 3-1, but as with all cases before the Supreme Court nowadays, it’s what the conservatives do that really matters. The fact that they ended up all over the map this time, doctrinally-speaking, suggests that opponents of uranium mining got lucky; future parties with existential threats for the court’s consideration can only hope to do so well.

If, by now, you’ve gotten the impression there’s a dim view being taken here of the Roberts Supreme Court, you’re not wrong. (I could spend a long time listing the hideous decisions foisted on the country by this court, but let’s just cite one: Citizens United v. FEC, an especially egregious sop to the donor class.) Chief Justice Roberts is considered the institutionalist among the conservative justices, but he wasn’t exactly a restraining voice in Virginia Uranium v. Warren; Roberts flat-out wanted to give Walter Coles a nuclear-powered earth-moving machine to get crackin’ at Coles Hill. Alas, for Virginia Uranium, Monday turned out to be a crappy day in court despite the kindliness of the chief judge. These things happen.

Of course, it’s tough beans for Coles & Company, because now they have nowhere else to turn, unless I’m missing something. Virginia Uranium got a nice assist at the Supreme Court from Donald Trump’s Justice Department, joined by rightwing Senate goombahs Ted Cruz of Texas and Tom Cotton of Arkansas — all Republicans, and all of whom filed briefs supporting Virginia Uranium’s position. (Thanks, fellas. Now go take a long walk off a short bridge.) Perhaps Virginia Uranium thinks it can execute a similar strategy at the state level with the General Assembly doing a political 180 and lifting the ban, but I really can’t see that happening. It’s to their credit that Southside’s legislative delegation (also all Republicans) stands in opposition to uranium mining, but the real force behind the ban in recent years has been the rock-solid support for keeping a lid on the industry by Democratic governors and lawmakers. The prospects of that changing soon in Richmond? Not great.

Anything can happen in politics, of course — read a headline out of Washington if you care to argue the point — but as fate would have it, the Supreme Court issued another decision Monday that greatly helps Democratic chances of taking control of the House of Delegates in the November election. (The court declined to hear an appeal of a gerrymandering case brought by the Republican House majority, thus upholding new district lines that favor Democratic candidates.) True, nothing is guaranteed in life or especially politics. Yet realistic prospects and available options do mean something, especially when Virginia Uranium’s investors surely could put their money to work doing something to make them richer. With this many complications and roadblocks to uranium mining in Pittsylvania, you really do have to wonder when Virginia Uranium will give up the glowing ghost of its ambitions. With billions of dollars’ worth of yellowcake stuck in the ground, we’ll probably never be rid of controversy over uranium mining in Southside. Yet after Monday, there is one thing we do know: heavy as 119 million pounds of uranium ore already was, it just sunk a little deeper in the ground.

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