Imagine if, prior to arguing Brown v. Board of Education on behalf of the NAACP, future Supreme Court Justice Thurgood Marshall instead had been forced by pro-Jim Crow judges to pay substantial penalties for "grossly abusing the judicial process" by asserting what they deemed to be frivolous arguments. Had that been the case, how long would the father of two children risked bankrupting his family by taking on additional cases and who would even replace him?

Imagine an America without the Brown decision or one in which Jim Crow was able to maintain its death grip on the south for another generation. Imagine an America in which lawyers dared not challenge the mightiest no matter how egregious their offenses may be for fear of financial ruin. No Thurgood Marshalls, no Ralph Naders and no Howard Shankers.

Howard Shanker is an Arizona environmental lawyer who has won a string of major environmental cases including a ruling that helped preserve the natural beauty and air quality of the Grand Canyon National Park by thwarting construction of an environmentally unsustainable and unsuitable commercial retail development on the southern edge of the Grand Canyon National Park.

Shanker also has worked pro-bono on behalf of Indian groups to challenge the U.S. Forest Service's permitting a ski resort to use reclaimed wastewater to make snow in the San Francisco Peaks north of Flagstaff because it involves sacred tribal lands and potential human ingestion of water containing known carcinogens. In February, an all Republican panel of the Ninth Circuit Court of Appeals rejected Shanker's arguments as a "gross abuse of the judicial process" (even though a different Ninth Circuit panel of judges had initially ruled in favor of his clients). Last week the same panel imposed sanctions on Shanker, ordering him to personally pay the ski resorts' costs throughout the litigation.

The San Francisco Peaks decision was rendered by Judge Milan Smith, the son of the founder of Smith Frozen Foods ("SFF") and brother of former U.S. Senator Gordon Smith (R-OR) who ran SFF prior to taking office. It turns out that SFF has a long history of wastewater violations (including a 1991 incident that killed thousands of fish) and Senator Smith's environmental record in the Senate was not much better.

Earlier this month, Judge Smith launched a political tantrum in dissenting against the holding in Karuk Tribe of California v. United States Forest Service in favor of Indian tribes challenging mining operations on the Klamath River. Smith's dissent, which includes a drawing from Gulliver's Travels, rails against recent Ninth Circuit decisions upholding and enforcing environmental laws against businesses as akin to Gulliver being tied down by bureaucratic Lilliputians causing "economic chaos, shutter[ing] entire industries, and caus[ing] thousands of people to lose their jobs."

This is consistent with his approach to the San Francisco Peaks litigation where, in writing the opinion denying the appeal, Smith goes on at length over the number of jobs involved and the perceived economic burden to the ski resort in having to delay snow-making capability while such trivial things as environmental safety and Navajo religious rights were adjudicated.

As Gary Marchant, the Lincoln Professor of Emerging Technologies, Law and Ethics at Arizona State University's Sandra Day O'Connor College of Law, explains:

there is no question that [the San Francisco Peaks case involved] a valid set of claims that could have been decided either way [and] therefore is clearly not a case where sanctions would be appropriate or warranted.

More importantly, Marchant adds,

[a]pplying sanctions in a case such as this would have a chilling effect on the willingness of qualified counsel to take on controversial and important public interest matters of any type.

This is not a theoretical risk. For example, the American Bar Association reports that recent changes in bankruptcy law imposing sanctions on lawyers for inaccuracies in client financial statements has led many firms to cease pro bono bankruptcy representation altogether.

That is precisely the result Judge Smith wants. Unable to convince his colleagues to adopt his anti-environment ideology, Smith instead is doing the next best thing by sanctioning Shanker which is to close the door to the courts to the Lilliputians altogether.

This is a classic example of judicial activism. While courts normally tread carefully in this area citing the potential chilling effect sanctions could have on future pro bono representation, this court merely says "you're lucky we didn't sanction the client too" as apparently one member of the panel wished to do.

Shanker is appealing the order to the full Ninth Circuit, whose ruling will have an effect on public interest litigation nationwide. Imagine a world without Thurgood Marshalls -- for it may soon become a reality.