The Sacketts' Second Day In The Nation's Highest Court Is Over. What's Next?

This morning the Supreme Court of the United States heard from the Sacketts of Idaho for the second time. For sixteen years the Sacketts have been in the Federal Courts in connection with their attempt to build a house on a lot that is or isn't subject to jurisdiction under the Federal Clean Water Act. As Justice Kavanaugh pointed out early in the oral argument, the Sacketts' case is going to have important implications from coast to coast.

At issue this time is the viability of Justice Kennedy's "significant nexus" test for determining the reach of the Clean Water Act to wetlands. That test didn't command the support of a majority of the Supreme Court sixteen years ago and now three of the Justices who rejected that test then (including the Chief Justice) have been joined by Conservative Justices Gorsuch, Kavanaugh and Coney Barrett. That's why most observers, including me, expected this Court to reconsider and reject the "significant nexus" test.