Washington – In the end, how you feel about Judge John G. Roberts Jr. may depend on your affection for a hapless toad.
Roberts is just 50. He hasn’t written too many decisions in his two years on the federal bench that reveal much about his personal views.
Nor can you reliably judge him by the pleadings to which he signed his name as a lawyer in the Reagan and first Bush administrations, including a suggestion that the Supreme Court overrule Roe vs. Wade, the case that established a right to abortion.
It is true that Roberts was drawn to federal service in the heady days of the Reagan revolution and fled the government when the Democrats took over in 1993. That indicates a certain commitment to conservative causes.
But a good lawyer represents a client’s interests, not his own. And the abortion brief that Roberts signed was written in 1991 – back in another century.
Even James Dobson, the conservative patriarch from Focus on the Family, says he doesn’t really know how Roberts would rule in a contemporary abortion case.
And if Roberts is conservative, well, OK. George W. Bush won the 2004 election, not John Kerry. Republicans control the Senate, not Ted Kennedy.
That’s the way things work in a democracy. In their nobly mushy hearts, most Democrats acknowledge this. Many of the hyperbolic attacks you will hear in the next 10 weeks will be launched by liberal (and conservative) groups who have conceded Roberts his seat on the Supreme Court but want to keep their supporters (and especially their donors) fired up for the 2006 and 2008 elections.
Yet that still leaves the rest of us wondering how Judge Roberts will rule when we ask him to preserve our civil liberties, and our privacy, in the anti-terror state. Or when we look to the Supreme Court for a ruling on death with dignity. Or we seek to preserve our freedom to worship, or doubt, a god as we wish.
Or – as in the case of the hapless toad – when we try to weigh the economic benefits of development with the less tangible value of an endangered species.
In 2003, a California real estate developer, intent on turning a few more acres of Pacific paradise into a Spielbergian suburb, brought its claim to the District of Columbia circuit court. The developer had run afoul of the U.S. Fish and Wildlife Service, which insisted that measures be taken to protect an endangered arroyo toad. A panel of judges from the court rejected the firm’s claim, so the developer asked the full court for a hearing.
The developer lost its bid for a fresh hearing by a 7-2 vote of the judges. Roberts was one of the two dissenters.
Since the days of the New Deal, the federal government has justified its regulatory authority for laws like those that protect endangered species by pointing to a clause in the Constitution that gives Congress the power to govern interstate commerce. Until a few years ago, given our complex economy, almost any business or transaction was deemed covered by the commerce clause.
Then, over the course of several terms, the conservative majority on the Supreme Court handed down a series of decisions that trimmed congressional power. Roberts knew those precedents and thought the developer should be given a day in court. He asked, in a brief dissent of some 30 lines: How does the fate of “a hapless toad” that chooses to live its entire life in California qualify as interstate commerce?
You would think, from the criticism that Roberts is now getting, that he was advocating a return to slavery. His rhetorical inquiry about the toad, opponents say, threatens federal authority for a wide range of highly prized civil rights, consumer safeguards and environmental protections.
And so we will hear a lot about the commerce clause when Roberts appears before the Judiciary Committee at his confirmation hearings. But, like most things in his record, the case of Rancho Viejo vs. Norton gives us just a tantalizing glimpse into his mind.
It is impossible to know how Roberts would ultimately have ruled on the developer’s case, especially since the Supreme Court, in recent months, has backed off its critique of Congress and the commerce clause. After all, he showed in his dissent an admirably conservative respect for precedent.
Nor can we determine why Roberts wished to give the developer another opportunity to argue the case. Does Roberts still nurture the idealistic flame of Reagan’s revolution – wanting to rein in federal authority and empower states and citizens?
Will he apply those principles with consistency, like Sandra Day O’Connor, the justice he will replace, who argued unsuccessfully this past term that the commerce clause is misused when it bans states from giving grievously ill patients the relief afforded by medically prescribed marijuana?
Or has Roberts, the bright young Harvard grad who arrived here at the peak of the conservative revolution, become a captive of the Washington establishment? Is he content with the swollen national security state, so long as it wields its power for developers, corporations and other Republican interests?
If so, we may all be feeling hapless.
Like toads.
John Aloysius Farrell’s column appears each Sunday. Comment at the Washington and the West blog (denverpostbloghouse.com/ washington) or contact him at jfarrell@denverpost.com.
