Water Theft

Pie Town, N.M.

I live sixty miles west of Magdalena, New Mexico, mentioned in Sasha Abramsky’s “Dust Bowl Blues” [Aug. 5/12] as being out of water. To some, scarcity translates as dollar signs. One such water-grab attempt is an application to the state by an Italian-owned corporation for a permit to pump 17 billion gallons of water a year from the aquifer between here and Magdalena. That aquifer does not recharge at anything remotely resembling such a rate.

Corporate bafflegab notwithstanding, what this would do is enable corporate owners to usurp a scarce public resource and sell it to upscale developers and water-intensive industries in the Albuquerque area. The state could thus release more Rio Grande water downstream to satisfy New Mexico’s legal obligation to Texas.

One of the bases of New Mexico water law is beneficial use. The question currently in a battle of words and law is what “beneficial use” means. Does a viable local economy and ecology have value? Or is whatever use generates the most near-term “economic growth,” as corporate profit and tax base, the sole criterion? This issue has people politically opposed to each other fighting on the same side against the corporate plunder of our homes (see sanaugustinwatercoalition.org).

UNCLE RIVER


Roberts Court: “Crimes & Misdemeanors”

Canonsburg, Pa.

Michael O’Donnell, in “Roberts’s Rules of Order” [July 8/15], concludes by saying it is better to abide by the horrible rulings of the Roberts Court than to mess with settled law. But there are times when precedents need to be broken lest horribly unjust decisions are allowed to impose injustice on millions of oppressed Americans. One thinks of the Dred Scott case, Plessy v. Ferguson, Bush v. Gore, Citizens United and other sordid Court opinions— many already in this new century—that have had a disastrous impact on blacks, women, Asians and the working class. 

DAVID W. SOUTHERN


Newton, Mass.

I take issue with Michael O’Donnell’s bizarre conclusion, after his perceptive summary of the Roberts Court’s crimes and misdemeanors, that liberals have to accept the subversive undoing of our Constitution in the name of precedent! Is he serious when he admonishes us that “the tougher but better path is to accept the bad decisions as the law of the land” because, if a hypothetical liberal majority reverses them in the future, the Court will appear political? Hasn’t he read his own indictment of the Court as the enforcer of a far-right agenda? I’m disappointed that The Nation would run so important a critique, but with so defeatist and resigned a punch line.

MARK S. BRODIN, professor and Lee Distinguished Scholar, Boston College Law School


O’Donnell Replies

Evanston, Ill.

I agree with David W. Southern that the Supreme Court has an obligation to correct an egregious misinterpretation of the Constitution. I disagree, however, with Professor Brodin—a respected and beloved figure at my law school alma mater. He suggests that I am resigned to a Court that issues right-wing opinions. But he seems resigned to a Court filled with political stooges. He is free to join the likes of Justices Roberts, Scalia, Kennedy, Thomas and Alito, who swing the wrecking ball at disfavored decisions as soon as they have five votes. For my part, I find the Roberts Court’s disregard for precedent immensely troubling and a poor example to follow. I would prefer a Court that respects the rule of law, even if that means accepting wrongheaded judgments from time to time. If I err in my thinking, it is because I am idealistic about the Court—not defeatist. 

MICHAEL O’DONNELL