Justice Roberts

I am sure you all know that Judge John Roberts was nominated to the Supreme Court. It certainly seems to be a much better nomination than Owens or Clement, one David Brooks and Mark Shields were happy about on PBS.

But one interesting point is that while abortion rights, civil rights, and all that tasty stuff are certainly not up in the air with O'Connor's replacement, or even Rehnquist's eventual replacement, environmental legislation may very well end up getting the boot. The Atlantic did a very interesting piece on this awhile back.

Consider the Constitution's commerce clause, which empowers the national legislature to regulate "commerce … among the several states." Since the New Deal the commerce clause has been construed very broadly, becoming the constitutional backbone of much important civil-rights legislation and of all the major environmental laws. Yet since 1995 the Court has issued a series of decisions that emphasize the limits of the commerce power, requiring that laws enacted under it deal in some sense with—well, interstate commerce. I have considerable sympathy for this line of argument, but its potential dangers to the environment are hard to overstate. For while the environment itself is intrinsically interstate, not all environmental-protection measures obviously constitute regulations of commerce "among the several states"—or even regulations of commerce at all. Can the government, under the Endangered Species Act, protect—as one conservative judge poetically put it—"a hapless toad that, for reasons of its own, lives its entire life in California"? Can it, under the Clean Water Act, protect isolated seasonal pools (which are not interstate) used by migratory birds (which are)?

These questions are not law-school hypotheticals. The constitutionality of protecting single-state endangered species from activity that may or may not be commercial in nature has been roiling the lower courts, splitting the most energetic conservatives from more-cautious ones. The D.C. Circuit Court of Appeals upheld protection of the hapless toad, as the Fifth Circuit did of "six species of subterranean invertebrates found only within two counties in Texas." (When a majority of the Fifth Circuit refused to rehear the latter case, a dissenting judge wrote, "For the sake of a species of 1/8-inch-long cave bugs, which lack any known value in commerce, much less interstate commerce, the panel [has] crafted a constitutionally limitless theory of federal protection. Their opinion lends new meaning to the term reductio ad absurdum.") The Fourth Circuit, over a ferocious dissent, upheld protections for red wolves in North Carolina. But in 2001 the Supreme Court dodged the constitutional question posed by migratory birds by finding nonconstitutional grounds to invalidate an important federal regulation that protected seasonal pools in Illinois. So where, exactly, it is headed on this issue remains murky.

With that in mind, take a look at what Slate told us about Robert's past decisions on environmental legislation:

Voted for rehearing in a case about whether a developer had to take down a fence so that the arroyo toad could move freely through its habitat. Roberts argued that the panel was wrong to rule against the developer because the regulations on behalf of the toad, promulgated under the Endangered Species Act, overstepped the federal government's power to regulate interstate commerce. At the end of his opinion, Roberts suggested that rehearing would allow the court to "consider alternative grounds" for protecting the toad that are "more consistent with Supreme Court precedent." (Rancho Viejo v. Nortion, 2003)

So it seems if anything should be debated prior to his nomination, the environment ought to be given the most attention. It probably won't, nor do I think it neccesarily should, but keep it in mind.

-Mr. Alec