Tuesday, August 09, 2005

Smoking Gun on Roberts - Part 2

Smoking Gun on Roberts - Part 2
Bob Moss

In a previous posting http://political-stuff.blogspot.com/2005/08/smoking-gun-on-roberts.html , having been tipped off by Findlaw columnist Julie Hilden, I explained why, contrary to media accounts, and even the testimony of some Democrats, D.C. Circuit Judge John Roberts is as extreme as they get. Having re­viewed his dissent in the Rancho Viejo case, I regret to inform you that he’s even worse than I thought.

We saw that Roberts considered the act of digging, as a necessary step in building a hous­ing development, to be an intrastate, non-commercial act, separate from the overall act of build­ing, market­ing, and selling units in a development, which he concedes involves interstate com­merce. The digging could thus not be regulated under the Endangered Species Act, even though the habitat of an endan­gered species was being de­stroyed. We saw that the consistent application of this theory would eviscerate virtually all Fe­deral regulations, not only the ones we don’t like, but also health, safe­ty, and consumer-pro­tection regulations.

Well, add crossing state lines to commit a crime, e.g. for the purpose of impairing the mor­als of a minor. I personally know of a 14-year-old girl who met an adult over the internet, told him when she would be traveling with her family to a state in which neither of them lived, and which hotel they would be staying in. The man booked a room next to hers and appeared on the scene. (Fortunately, that was as far as it went.) I would much rather that such a sicko be guilty of a Federal offense than not. But under Roberts, an entire class of federal criminal legis­lation would have to be tossed. He all but says this explicitly.

For purposes of confirmation to the Supreme Court, not only does the outcome of a judge’s reasoning have to be bad, but the reasoning itself has to be bad. Roberts aces that requirement, twisting legal precedents to suit his needs, as if he were arguing a weak case for a wealthy client, rather than impartially judging from the bench. I have to admit that Roberts’ argument is clever, but being clever is not the same as being right. My explanation is going to be somewhat like high school geo­metry, so please bear with me—it’s important.

When looking for a precedent, Roberts obviously wanted one in which the definition of in­ter­state commerce was restricted rather than expanded. He chose United States v. Lopez (1995). There, the Supreme Court struck down an act of Congress prohib­iting possession of firearms near a school, on the ground that the proscribed behavior had such a tenuous connection with interstate commerce that, should the law be upheld, there would be no practical limit on Con­gress’ power to reg­u­late matters which the Constitution has left to the states.1

However, as we shall see, Lopez by itself was not sufficient. To achieve his purpose, Rob­erts raised a conundrum by testing the holding in Lopez against a principle allegedly enun­ciated in U. S. v. Salerno (1987)—that in order for a law to be found uncon­stitu­tional, there must be “no circum­stances” in which the prohibition might be constitu­tion­al. How could the ban on firearms near a school satisfy this restriction? As Roberts ac­knowledged, a person possess­ing a firearm might be “part of an interstate ring,” and may have “brought it to the school to sell it.” Roberts solved the puzzle by assuming that the Court in Lopez considered the possession of a firearm near a school to be a separate, intrastate act, no matter where the offender came from and what kind of interstate crime ring he belonged to. This assumption created an alleged pre­cedent for declaring that digging up the toads’ habitat is a separate, intrastate act, even if all the building materials and labor came from out-of-state, and all the houses are marketed and sold out-of-state.

Pretty neat, except for one thing—it’s totally, objectively wrong.

Even though Roberts quoted Salerno correctly, the words “no circum­stances” in Salerno clearly were not meant literally. The question in Salerno was whether Congress could mandate pre-trial de­tention of de­fendants charged with serious crimes and found to be a danger to the community. The consti­tutionality of such a law, according to the Court, turned on whether the purpose of the de­tention was to punish the defendant for acts not yet committed, or to protect the community.2 The Court held that so long as the law could reasonably be interpreted as being designed to protect the com­munity, it was constitutional. In other words, the principle enunciated in Salerno was a long-stand­ing and un­dis­puted one: in order for a law to be unconstitutional, there must be no reason­able inter­pretation of it that would render it constitutional. “No cir­cum­stances” was merely a poor choice of words.

Reading Lopez bears this out. Roberts is just plain wrong. As we saw, he wants us to as­sume that the Court in Lopez considered the act of possessing a firearm near a school to be always distinct and separate from interstate com­merce, no matter where the offender came from and what sort of interstate firearms ring he be­longed to. However, the second sentence of the Lopez opinion says, “The Act neither regulates a commercial activity nor contains a requirement that the pos­session be connected in any way to interstate commerce.” After much discussion, the opinion expressly states that the Constitutional problem with the ban on fire­arms near schools was that it contained no language that could reasonably be interpreted to require a connection with interstate com­­merce. Thus if it did, it would pass constitutional muster.

Clearly, no rational person could infer from Lopez that possession of a firearm near a school is always, in every circumstance, an isolated, intrastate act. Assuming that Roberts is ra­tional, he deliberately mangled Lopez to provide a fig leaf for his op­posi­tion to the Endan­gered Species Act. Did he realize that in doing so, he also advanced a nearly explicit argument for overturning any law mak­ing it a federal crime to cross state lines to commit untoward acts with a firearm? Perhaps he opposes all controls on firearms, as well as on killing endangered spe­cies. In any case, he was not just wrong, he was maliciously wrong.

To be fair, it is not uncommon for judges to deliberately misinterpret the law in order to ad­vance their ideologies. But that’s no excuse for Roberts. Whenever it’s done, the offender should be excoriated publicly until he or she reforms or resigns—and in no case should such a miscreant be elevated to the Supreme Court.


1 He also relied on United States v. Morrison (2000), in which the Court struck down the Violence against Women Act, for the same reason. In our discussion, we need only mention Lopez.
2 There were actually several issues to be considered, but this is the only one that bears on Rob­erts’ argument