Unanimity is elusive in today's America, but the Supreme Court achieved it . Although the dusky gopher frog is endangered, so are property rights and accountable governance. Both would have been further jeopardized if the frog's partisans in the U.S. Fish and Wildlife Service (FWS) had gotten away with designating 1,544 privately owned Louisiana acres as a “critical habitat” for the 3-inch amphibian, which lives only in Mississippi and could not live in the Louisiana acres as they are now. The eight justices (the case was argued before Brett M. Kavanaugh joined the court) rejected both the government's justification for its designation and the government's argument that its action should have received judicial deference, not judicial review.
In his opinion for the court, Chief Justice John G. Roberts Jr. explained that, back in the day, you could not sling a brick without conking a dusky gopher frog in the longleaf pine forests of coastal Alabama, Mississippi and Louisiana. But 98 percent of those forests have been supplanted by urban development, agriculture and timber harvesting. The frog species, one of which was last seen in Louisiana in 1965, was designated endangered in 2001, when about 100 were found at a single pond in southern Mississippi, where the FWS decided the frogs were at risk of extinction from hurricanes or other natural events.
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