Wednesday, November 19, 2008

Viros, Whales, SCOTUS, and the Navy

As proof that the Supreme Court does not always come down on the wrong side, I offer this story of a recent decision in favor of the Navy. The case was to decide whether the Navy was required to take steps to avoid harming whales, such as shutting off their sonar when they came within a mile and a quarter.

One popular (and, gee big surprise, unproven) theory asserts that sonar and engine noise can disturb whales. Among the alleged effects are disorientation, excessively deep diving, and others. Yes, it would be easy simply to scoff at the theory. But hard-bound advocate of objectivity that I am, I have no idea whether or not it's true. I don't know, and I don't care. It's irrelevant.

Luckily, the Supreme Court didn't care much, either, and this time for apparently the right reasons. They ruled, in a 6-3 decision, that national security concerns trumped any alleged harm to the whales. (Three guesses — two don't count — as to who were the three Justices in opposition.)

Chief Justice Roberts, writing for the majority, said:
We do not discount the importance of plaintiffs' ecological, scientific, and recreational interests in marine mammals. Those interests, however, are plainly outweighed by the Navy’s need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines.
While I'm happy with the decision, I have a couple of (ok, they're rhetorical) questions. First, why should the majority take into account the "ecological, scientific, and recreational interests" of anybody in delivering a judgment here? More importantly, why is the Supreme Court hearing this case at all?

Thank heavens, they did, since the effect is to lift restrictions on submarines that were already put in place by lower courts. (Two cheers for the Federal system!) Nevertheless, it's only because of that vicious piece of nonsense legislation called the Endangered Species Act, and similar ones, that the viros can use the courts to cause this kind of trouble in the first place.

Don't get me wrong. I'm a huge animal lover and a lover of huge animals. I'm very fond of whales and not just as sources of practical products. There's something ultra-keen that no one has yet adequately explained about the sight of a whale. Maybe it's their sheer size and what magnificent things they can do given that bulk. Maybe it's their apparent peaceful nature. Who knows?

But one thing known for sure is that they have no rights that can be legitimately enforced in court. Anybody who believes otherwise doesn't know what a right is and how they're validated. (Yes, that would encompass most viros.) And, since the viros and their thuggish legal partners and enablers don't own the whales, they have no rights at issue either. As the legal experts put it, they have no standing.

So, the viros should sit down (and, preferably, shut up) and just enjoy the view. If the whales are not around, they can watch the submarines. That's a pretty awesome sight, too.

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