Roberts Reviewed

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July 22 2005 12:59 PM

Roberts Reviewed

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Dear Cliff and Dahlia,

The arroyo toad is a red herring.

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My first missive commented on a humorless environmental activist who chided John Roberts for using a light touch in dealing with the "hapless toad that, for reasons of its own, lives its entire life in California." Now that opinion is being criticized not only for employing a flippant, insensitive tone, but, worse, for betraying a cramped reading of the Commerce Clause hostile to federal regulation and by implication the environment. Because so much seems to ride on so few words, I urge readers to look at the opinion for themselves.

Leaving aside the three degrees of separation from the opinion to the environment, the charge is still baseless.

Let's review the facts. A real-estate developer wants to build, but runs into a toad, the arroyo toad. The Department of the Interior prohibits the development because the hapless toad is listed under the Endangered Species Act. The trouble is that the law is based on Congress' power to regulate interstate commerce, and the toad lives only in California and, as far as anyone can tell, does not engage in commercial activity. So, the developer argues that the law as applied to his land and the toad went beyond Congress' power under the Constitution.

The district court rejects the developer's argument, as does a three-judge panel of the D.C. Circuit. The rationale is that even though the toad never moves among states nor is commercial, the developer's business—building and selling real estate—is interstate commerce. This is a reasonable conclusion, since it follows an earlier D.C. Circuit opinion in 1997.

But so too is the conclusion of another appeals court, the Fifth Circuit, that what matters is not what the real-estate developer does, but what the toad is. After all, the Endangered Species Act deals with the toad and only incidentally with the real estate. Indeed, if the object of regulation (the developer) matters instead of the subject of regulation (the toad), then Congress has the power to regulate all of us (interstate travelers who engage in commerce) in virtually everything that we do. The Supreme Court said in 1993 and repeated in 2000 that such unlimited power is not the law under our Constitution.

Now, let's consider how Roberts handled this dispute. In arguing for reconsideration of the panel's decision against the developer, he did not say that the three judges decided the case wrongly. Rather, he acknowledged that their treatment of the case was consistent with the 1997 precedent of the D.C. Circuit. And note how judicious is his call for reconsideration. His guns are not blazing. His mind is not made up. Rather, his opinion states that the panel decision "seems inconsistent" with the Supreme Court holdings in 1995 and 2000. And he did not say that the Fifth Circuit was right, only that there is a clear conflict.

Finally, Roberts even suggested a way in which the whole dispute could be avoided if the entire court were to review the case: "Such review would also afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent." This suggestion describes not a man who cares not about the toad or the environment, but one who cares about the law as articulated by the Supreme Court.

Sure, reading between the lines, one can sense Judge Roberts' disagreement with the panel decision because he thinks it misapplies Supreme Court precedent. But it is especially in light of such apparent disagreement that his restraint and humility are so remarkable. Methodically and systematically he hones his craft, not prejudging or even presaging his conclusions but simply arguing for a chance to get it right. That's my definition of a good, honest judge.

Viet Dinh is a law professor at Georgetown University and was assistant attorney general for legal policy during the Bush administration from 2001 to 2003.