2024 Articles

The Ersatz of the Plain-Meaning Rule of Statutory Construction in Sackett v. EPA (II)

Neacsu, Dana

This essay uses the United States Supreme Court second decision in Sackett v. EPA, or Sackett (II), to stress the obvious: judges are tasked with decoding the nation’s laws for everyone’s understanding. This judiciary duty is heightened when judges encounter ordinary sounding words, such as “water” or “wetlands,” especially if they are used in technical statutes like the Clean Water Act (CWA). Moreover, it is this author’s opinion that when in doubt, rather than be afraid of acknowledging ignorance, as some comedians do, judges should aspire to incorporate scientific expertise in their legal reasoning, and avoid the fiction of the plain-meaning rule. Thus, any time a learned judge cannot explain the meaning of a word without the use of a specialized dictionary, legal or international, then the presumption should be that word is used as a “term of art.” To the point of Sackett (II), where the judiciary needed seven dictionaries to connect “water” and “adjacent” and define the composite “wetlands” as lands adjacent to bodies of water, such a linguistic game of mirrors distorts the public trust in the judiciary. In the process, the Roberts Court risks violating one of their hero’s rule – Justice Marshall’s - and create law, often bad law, rather than just “say what the law is.”