The Kennedy effect.

Gina Holland reports:

The Supreme Court ruled 5-4 Monday that regulators may have misinterpreted the federal Clean Water Act in refusing to allow two Michigan property owners to build a shopping mall and condos on wetlands they own.

Chief Justice John Roberts writes for a plurality, with Justice Kennedy providing the 5th vote in a concurring opinion. I haven't got the text yet, but Roberts slams Kennedy for leaving "lower courts and regulated entities ... to feel their way on a case-by-case basis." [See the update below!]

The court's four most conservative members wanted a more sweeping ruling, clearing the way for development of land unless it was directly connected to waterways.

The court's four most liberal members said that such a ruling would reject three decades of practice by the Army Corps of Engineers and threaten the environment.

It takes nerve to hold the two sides of the Court in equipoise like that, but it would also take nerve to commit to a clear rule. It takes nerve to relegate everyone to so much uncertainty and litigation, but it would also take nerve to determine the outcome in so many cases beyond the case at hand. Poor Justice Kennedy. I can't imagine how he feels about his role. And now it seems that it's the next change on the Court that will produce the... deluge.

UPDATE: Chief Justice Roberts, concurring, faults the Army Corps of Engineers for failing to come up with rules governing the scope of its power after the Court rejected its grandiose view in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001) (SWANCC):

Lower courts and regulated entities will now have to feel their way on a case-by-case basis. This situation is certainly not unprecedented. See Grutter v. Bollinger, 539 U. S. 306, 325 (2003) (discussing Marks v. United States, 430 U. S. 188 (1977) ). What is unusual in this instance, perhaps, is how readily the situation could have been avoided.

That's an interesting citation to the Michigan affirmative action case, Grutter. Note how elegantly Roberts doesn't quite criticize Grutter. He doesn't even criticize Kennedy for leaving the law in a condition of fuzziness. My original post says "Roberts slams Kennedy," which is an incorrect inference I made reading Holland's report. Roberts doesn't even mention Kennedy. He slams the Army Corps of Engineers. And he doesn't complain about fuzzy legal standards generally. He's focused on the failure by the Corps to provide the clear rules that would have solved the problem.

Justice Scalia who wrote the plurality opinion, joined by Roberts, Thomas, and Alito, did go after Kennedy, but not to chastise him for leaving the lower courts to struggle through unclarity. His opinion is concentrated on proper textual analysis of the statute.

So, I really need to reframe this post. I was too eager to perceive Kennedy setting himself apart from the Roberts-Scalia-Thomas-Alito group. I think this opinion would have been written differently by the Rehnquist Court, and that Roberts is having a moderating effect.