If a qualified constitutional lawyer told you that John Roberts thinks the Endangered Species Act is generally unconstitutional, would you be calling your senator?
Well, there is growing evidence that John Roberts might be an extremely activist jurist on states' rights with regard to the Act. A piece by Julie Hilden on Findlaw.com exposes some extremely disturbing implications of his thinking. In particular, she dissects his dissent in Rancho Viejo v. Norton -- i.e., the
toad case
[First off, the dissent was actually to protest the full court's refusal to rehear the panel's decision, just to set it up.]
The thrust of the piece is that based on his opinion in that case, it's clear that Roberts would impose severe limits on the commerce clause. To Hilden, he takes Lopez and Morrison - which threw out the gun free school zone and violence against women act - much, much further...
To give you a feel:
Roberts's context-free view of this issue isn't just ridiculously narrow, it's also disturbingly activist. In his controversial dissent, Roberts isn't just innocuously counseling that the D.C. Circuit follow the binding higher-court precedents of Lopez and Morrison - as his opinion suggests. He's counseling that the Court go far beyond Lopez and Morrison to forbid any Commerce Clause goal that isn't itself a commercial purpose.
So when businesses tromp on other businesses, Congress can step in and regulate the activity. But when they tromp on toads, Congress can't - in Roberts's view. Even though it's the businesses who are acting, in Roberts' view, the "regulated activity" - the tromping itself -- is not a form of commerce, and that's all that counts.
In Lopez, the majority made assurances that the activities in question were completely outside of any reasonable definition of commerce:
[U]nlike the earlier cases to come before the Court here neither the actors nor their conduct has a commercial character, and neither the purposes nor the design of the statute has an evident commercial nexus. The statute makes the simple possession of a gun within 1,000 feet of the grounds of the school a criminal offense. In a sense any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far - Lopez
This is certainly NOT an endorsement of what Roberts is suggesting. This simply says, "look, there's no `commercial nexus' in policing guns near schools." ... Only a judicial activist would take that to mean, "real estate companies can't be regulated to protect the public".... And what are the implications of his thinking for workplace safety and discrimination laws?
He needs to face some tough questioning here...