Betty and I were on calendar together the week before she died. I could tell that she was not feeling well, but nonetheless, as we discussed the cases at our post-hearing conference, she was her usual brilliant self. She had what she termed a distinguished record of reversals by the U.S. Supreme Court, often joined by me. One such case was National Resources Defense Council v. Winter that we heard in 2008 together with Judge Stephen Reinhardt. This was an environmental case and if you knew Betty, you knew that she was a passionate environmentalist. She and her sisters were the first women to hike the Wonderland Trail, a rugged 93-mile trail that includes a complete loop around Mount Rainier, the highest mountain in Washington state. I understand that one of her eight grandchildren later followed in her footsteps.
The Natural Resources case was about mammals, especially whales. Environmental organizations were concerned about the Navy’s use of high-intensity, mid-frequency sonar exercises that would cause serious harm to various mammals in Southern California waters. Similar exercises around the world had caused the beaching and deaths of many whales. The environmentalists brought a motion for a preliminary injunction in the district court seeking to prevent this activity. The district court judge, while allowing the training activities to continue, imposed restrictive conditions on them. Betty, in a bold, thoughtful, level-headed, fearless and eloquent 45-page opinion, affirmed the district court. Judge Reinhardt and I concurred. I should mention that at oral argument, Betty was superb. When an attorney challenged the court’s right to tell the Navy what to do, Betty, never confrontational, simply smiled and said something to the effect that it was the court’s duty to protect the planet.
We were reversed, of course, by the U.S. Supreme Court, in a 5-4 opinion. As her son, Willie, now a judge on our court, later commented: “Damn the whales, full speed ahead.”