Vibrant colors of politics can fade in, out on the bench

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By HOWARD TROXLER

© St. Petersburg Times, published March 7, 2001

Part of the damage from the last election was done to public confidence in our courts. This was made worse by willful attacks on judges from the warring parties.

The Republicans howled that the Florida Supreme Court had no integrity when it ruled for the Democrats. Attempted revenge against the court will be one theme of the session of our Legislature that began Tuesday.

But when the U.S. Supreme Court ruled for George W. Bush, the shoe was on the other foot. Even today, some Democrats refuse to consider Bush the "legitimate" president.

The attitude on both sides was: "If I lose, the judge has no integrity."

The calmer truth is that most judges, most of the time, honestly are trying to figure out what the law actually says. Sure, they can be wrong, or even dim. But they rarely just make stuff up.

A fine new example comes from the U.S. Supreme Court. Last week, the same court that ruled for Bush upheld one of the great liberal triumphs of the 1960s and 1970s environmental movement: the Clean Air Act.

The nine justices were more or less unanimous. So which justice wrote the ruling? Which justice spoke for the tree-huggers and the deer-lovers? None other than ... Antonin Scalia. Scalia, the green justice! Go figure.

The trucking industry had sued to block new, tougher pollution standards from the Environmental Protection Agency. Scalia got to work right away. He shot down the industry's claim that the EPA should have considered the economic impact of its rules.

Nonsense, Scalia said. The plain reading of the law, "the most natural of readings," says zip about that. The industry argued it COULD be considered. But Scalia shot down that fake loophole: Congress, he wrote, "does not hide elephants in mouse holes."

Next, the industry argued that the Clean Air Act is an "improper delegation" of Congress' power to write laws, by handing too much power to bureaucrats in the EPA. Was this lawmaking, or mere rule writing?

Here was the perfect chance for Scalia, or any business-loving, regulation-hating conservative, to destroy the law. Instead, Scalia calmly noted that decades of court rulings had upheld the power of these kind of agencies. EPA's power under the law "fits comfortably within" that precedent, Scalia said.

In the end, the Supreme Court sent the case back down for the EPA to come up with a new procedure for meeting its higher standards. But the ruling upheld the heart and soul of the Clean Air Act, one of the biggest environmental rulings in years. "This is a huge victory for the Clean Air Act and a major setback for polluters that will need to clean up their act," crowed Ed Hopkins of the national Sierra Club.

The point is when it came to doing his job, Scalia -- along with fellow conservatives Clarence Thomas and Sandra Day O'Connor, and Chief Justice William Rehnquist -- joined the court's more liberal justices in following precedent and plain reading of the law. They were intellectually consistent, which is the highest praise you can give a judge.

Remember, Scalia once voted to defend the free speech of flag-burners in Texas v. Johnson, while the liberal justice John Paul Stevens voted against it ("The value of the flag as a symbol cannot be measured.") They were driven by their reasoning, not their politics.

The same point must be made for the Florida Supreme Court in its election rulings. Sometimes your side wins, sometimes it loses. It is possible to disagree with a ruling, even to consider it wrong, without declaring the judges corrupt and due for tar and feathers.

Using the standard of "My side didn't win, so let's get the judge" is a cynical attempt to whip up disrespect for the rule of law for short-term partisan gain. The long-term cost is incalculable.

- You can reach Howard Troxler at (727) 893-8505 or at troxler@sptimes.com.

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