Justices’ Rulings Called ‘Murky’ and ‘Confusing’

The Supreme Court is, after all, a committee of nine lawyers.

And like other committees, the court sometimes does not come up with clear answers to the legal questions it is supposed to decide.

Instead, it makes more work for lawyers.

The court-as-committee was on display Monday in a pair of major decisions that left more questions than answers. One concerned wetlands, the other involved the words of crime victims.

Perhaps befitting the subject of wetlands, advocates on both sides described Monday’s ruling as “muddy” and “murky.” This case was supposed to decide: What is a wetland under the protection of federal environmental laws?

But the justices announced three possible answers, and the court’s unusual 4-1-4 split appeared to please no one.

The Clean Water Act was designed to protect the “waters of the United States” from pollution, four liberal justices and the Bush administration said. So if even one drop of water can flow from a wetland to a river or lake, the wetland can be regulated by the government -- even if it is many miles inland.

Four conservatives on the court said that thinking went way too far. That would include “puddles ... storm drains and roadside ditches,” they said.

Under this one-drop-of-water theory, the roof of the Supreme Court would be a wetland, one lawyer observed in a brief filed in the case, because rain water can flow from its gutters to the Potomac River.

Justice Antonin Scalia, speaking for the conservatives, said a wetland must be a “continuously flowing body of water” that was part of a river or lake system.

That definition would end federal protection of tens of millions of acres of wetlands -- including nearly all those in the West, because they are dry for much of the year.

The third answer was supplied by Justice Anthony M. Kennedy, a California native who saw shortcomings in Scalia’s opinion. The court’s centrist justice, Kennedy sought a middle position, one that would protect most wetlands but not mud puddles or drainage ditches.

He said a wetland must have a “substantial” connection to a navigable river or lake, even if water only flows a few days a year. If filling the wetland would “significantly affect the chemical, physical or biological integrity” of the downstream waters, then it can be protected, he said.

But who could know which wetlands, if filled, would cause a significant impact downstream? Kennedy said the Army Corps of Engineers must decide this “on a case-by-case basis,” and it may not point to “speculative” effects.

Many legal experts who read the court’s opinion -- 100 pages in all -- admitted they could not say for sure who won.

They could agree, however, that it meant more litigation.

“Clearly, the court is not speaking with one voice,” said Joan Mulhern, a lawyer for Earthjustice.

Farmers and landowners took much the same view. Their lawyers are now faced with showing that filling in a low-lying field, for example, will not have a significant effect on the nearest rivers.

To add to the confusion, Scalia delivered his opinion first on Monday, as though he were speaking for the court. Technically, five justices, including Kennedy, had voted to overturn the lower court ruling against Michigan developer John Rapanos.

But it soon became clear that Scalia’s strong opinion cutting back on the reach of the Clean Water Act did not, in fact, speak for the majority.

Chief Justice John G. Roberts Jr. wrote a short statement asking for help. The Army Corps of Engineers could have -- and should have, Roberts said -- issued regulations that defined the limit of federal control over wetlands. Judges “will now have to feel their way on a case-by-case basis,” he said, unless the regulators act soon.

The court did not fare much better Monday in deciding a second question: When can a crime victim’s words be used as evidence in court if the victim does not testify?

The answer is crucial to the prosecution of domestic violence cases because the alleged victim often refuses to testify.

One possible answer is to say reliable evidence can and should be used in court. Before 2004, that was what the Supreme Court had said. A victim’s tape-recorded statement or a sworn statement could be used as a substitute for a missing witness.

But a second answer is to say a victim’s words, when given to authorities, amount to a criminal accusation and cannot be used in court unless the victim testifies. The 6th Amendment says, “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”

Two years ago, in a case called Crawford vs. Washington, the high court overturned a man’s conviction because his wife’s tape-recorded statement at a police station had been used against him at his trial. Scalia said that when the words of a witness were used as testimony, the witness must testify in court.

This spring, the court took up two cases to clarify this rule. One involved a crime-scene report in which a woman told police her enraged husband had thrown her to the ground. In a second, a frantic woman called 911 to report that her ex-boyfriend was beating her.

On Monday, the justices freed the husband and upheld the conviction of the boyfriend.

The wife’s crime-scene report was “narrative of past events,” Scalia said, because the alleged beating had taken place a few minutes before police arrived. By contrast, the 911 call involved “present-tense statements,” because it took place a minute before the boyfriend fled, Scalia said.

Afterward, the winning lawyer in the first case described himself as “feeling grumpy” and called the court’s opinion “rather confused.”

University of Michigan law professor Richard D. Friedman, an expert on the 6th Amendment, represented the husband and hoped the court would say clearly that a crime victim’s words cannot be used as evidence unless she testifies.

“I wish they had done that, but they didn’t. This leaves a good deal of uncertainty,” he said Tuesday. “Now we will have to wait and see while other cases come along.”

Seattle lawyer Jeffrey L. Fisher, who represented the defendant in the 911 case, said the ruling left plenty of uncertainty on that front. “It seems to draw a fine line. It doesn’t involve all 911 calls,” he said, since Scalia’s opinion speaks only of “an ongoing emergency.” “This could be terribly confusing if the threat is ending,” he said. It means, of course, more litigation, he added.

“We have several years of cases and decisions ahead before this is ironed out,” Fisher said.

For its part, the Supreme Court will be back on the bench Thursday to attempt to answer more legal questions.

One yet-to-be decided case involves Salim Ahmed Hamdan, a onetime driver for Osama bin Laden who faces a war-crimes trial at Guantanamo Bay, Cuba. One hint of trouble for the court can be seen in his appeal. He asked the justices to resolve six separate questions to clarify the rules for military tribunals.