Journal of Supreme Court History

T h e T re e s A re S till S ta n d in g : T h e UTSRQPONMLK B a c k s to ry o f Sierra Club v. MortonJIHGFEDCBA M . M A R G A R E T M C K E O W N zyxwvutsrqpo The query “Should trees have standing?” ranks among the iconic phrases in American jurisprudence. As environmental litigation blossomed in the 1970s, the Supreme Court took up the case of TSRQPONMLKJIHGFEDCBA S ie rra C lu b v. M o rto n } Justice William O. Douglas’s stirring dissent, arguing that “[t]he river as plaintiff speaks for the ecological unit of life that is part of it,”2 was a rallying cry for opening the courts to protecting nature. Concern about ecology, in Douglas’s view, “should lead to the conferral of standing upon environmental objects to sue for their own preservation.”3 Hence, the notion that trees have standing took root. This article tells the backstoiy of how Douglas’s dissenting opinion came to be, focusing on his longstanding relationship with the Siena Club and the impact of an as-yetunpublished law review article4 that landed on Douglas’s desk while the case was pending. For the first time, these events are explored through the lens of the case files in the lower courts, the Supreme Court docket, chambers papers from Justices Douglas, Potter Stewart, Thurgood Marshall, and Harry Blackmun, the Sien'a Club archives, and interviews with key players. These sources provide a window into the debate about standing for environmental organizations, offers insights into the Justices’ thought processes and judicial decision making, and highlights the ethical tensions sumounding judicial conflicts of interest and e x p a rte contacts with the Court. T h e M a n a n d H is M o u n ta in s 5 Although Douglas was a giant in the legal world, he is often remembered for his four wives, as a potential vice-presidential nominee, as a target of impeachment proceedings led by then-Congressman Gerald Ford, and for his tenure as the longest-serving Justice, even now, from 1939 to 1975. A committed civil libertarian, he authored landmark decisions about privacy,6 free speech,7 and criminal procedure.8 But perhaps his most enduring legacy is his public and private advocacy for environmental causes and his success in that endeavor.9 Douglas’s love for the mountains was his childhood refuge in Yakima, Washington. In his autobiography, G o E a st Y o u n g M a n , 1 9 0 RQPONMLKJIHGFEDCBA J O U R N A L O F S U P R E M E C O U R T H IS T O R Y zyxwvutsrqponmlkjihgfedcbaZY Douglas wrote, “My love of mountains, my interest in conservation, my longing for the wilderness—all of these were established in my boyhood in the hills around Yakima and in the mountains to the west of it.”10 After attending Whitman College and a brief stint teaching at Yakima High School, Douglas headed east to Columbia Law School.11 Although he toyed with returning to Washington to practice law and even dipped his toe in a country practice, Douglas eventually stayed in New York. He worked both as a lawyer at the now-famed Cravath firm and as a professor at Columbia. After an unexpected offer from Yale Law School —Douglas professed he “actually did not J u s tic e W illia m 0 . D o u g la s ’s lo v e o f n a tu r e s te m m e d fr o m h is b o y h o o d g ro w in g u p in Y a k im a , W a s h in g to n UTSRQPONML a n d h ik in g th e m o u n ta in s to th e w e s t. O n th e C o u r t, h e b e c a m e “ a o n e -m a n lo b b y s...