Smoking Gun on Roberts

Smoking Gun on Roberts
Bob Moss

Supreme Court nominee John Roberts has been presented as a solid, non-fringe conservative. In answer to a Senate questionnaire,

Roberts used one question on "judicial activism" to echo a theme voiced by President Bush. "It is not part of the judicial function to make the law" from the bench, Roberts said. A judge's job is "simply to decide cases before them according to the rule of law," he said.

"High Court Nominee Sides With Restraint", Los Angeles Times, August 3.

Roberts, like everyone in Bush's coterie, is lying. Findlaw columnist Julie Hilden has identified the smoking gun. She shows that Roberts' dissent in a case involving toads and the Endangered Species Act "reveals him as an extreme proponent of 'states' rights' Federalism" (1).

The Washington Post has touched lightly on this topic, reporting that

A toad may offer insight into John Roberts' legal philosophy.

The Supreme Court nominee voted against the amphibian in a 2003 case testing the powers of the federal government, a decision that suggests he may be inclined to support state or local interests on issues from civil rights to pollution control if confirmed to the high court.

("Roberts' Vote in Toad Case Is Dissected", August 1.) The Post is grossly understating the problem, and even Ms. Hilden did not explore all the implications of Roberts' dissent, as she acknowledged in an email.

In Rancho Viejo v. Norton, the DC Circuit Court of Appeals upheld U.S. Fish and Wildlife restrictions on a California developer's construction methods, designed to protect the endangered arroyo desert toad. The power to protect the toad (via the Endangered Species Act) derives from the Federal constitutional power to regulate interstate commerce. Under long-standing court precedent, it is assumed that the developer is using materials or labor brought in from another state, will not restrict its marketing to California, and will not turn away out-of-state purchasers. Thus the construction of the homes is, for purposes of the Constitution, interstate commerce.(2)

Judge Roberts, in his dissent, argued that the immediate activity which threatened the toads, digging dirt out of their habitat, should be considered in isolation. The act of digging occurred strictly within California, was therefore was not an interstate activity, and the toads were therefore not protected by the Endangered Species Act. He could cite no precedent for this extreme position.

Those of you who wouldn't give a rat's ass for a toad had better be concerned about Roberts' position anyway. Its implications of are breathtaking. If followed consistently, it would eviscerate virtually all Federal regulatory laws.

Under Roberts' logic, any highway, railroad, or airport construction activities that aren't literally on a state line are local affairs, exempt from the provisions of the Endangered Species Act. Or take consumer product safety. The actual act of assembling a toy no more occurs across state lines than the actual act of building a house. Most toys come from China nowadays and are shipped across state lines, but the actual act of selling a toy no more occurs across state lines than does putting up a building. So, out with the Consumer Product Safety Commission.

Or take lending. The actual legal act of lending, signing the papers, occurs in one state. (How many lending organizations provide desks that straddle state lines?) So, out with Federal truth-in-lending laws.

Roberts' answer might be that the taking of a toad is entirely different than ensuring safety. But such an answer would merely prove that his position is politically motivated. Constitutionally, there's no difference between toads and toy safety. The Constitution doesn't give Congress the right to regulate safety (or lending practices); it gives Congress the right to regulate interstate commerce. If Roberts wants to pick and choose which activities are part of interstate commerce, based on what he thinks ought to be regulated, then he's making his own law. Or, if he applies his principle consistently, then he's consistently departing from settled law. In either case, he's lied to us, and does not deserve to sit on any court, let alone the Supreme Court.

(1) http://writ.news.findlaw.com/hilden/20050801.html

(2) The alternative of allowing builders to agree not to use out-of-state materials and labor, and only sell to California residents, would be expensive and impractical to enforce.