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For Real Picture of High-Court Hopefuls, Review Past Opinions

Los Angeles Daily Journal, Forum Column
May 6, 2005
Timothy J. Dowling


In certain quarters on both the left and the right, it is conventional wisdom that everyone on George W. Bush's short list for the U.S. Supreme Court is cut from the same ideological cloth. For each pro-Bush pundit who paints all potential nominees as mainstream, there is a Bush-basher who depicts them all as radical extremists. The truth is far more interesting.

Compelling evidence of jurisprudential diversity among plausible candidates for the Supreme Court can be found in the highly charged dispute between two short-listers over the Interstate Commerce Clause as applied to environmental safeguards. One cutting-edge issue under the clause -- which empowers Congress to regulate commerce "among the Several states" -- is whether federal regulators may use this authority to protect an endangered species that lives in only one state.

Judge J. Harvie Wilkinson III, a potential Supreme Court nominee, authored an opinion rejecting a Commerce Clause challenge to federal protections for red wolves in Gibbs v. Babbitt (4th Cir. 2000). The wolves, originally found throughout the southeast, currently live only in North Carolina. The Gibbs court upheld the wolf protections as substantially affecting interstate commerce because people kill the wolves to protect commercial assets such as livestock and crops. Judge Wilkinson also cited wolf-related scientific research and possible commercial trade in fur pelts as establishing an adequate connection to interstate commerce. Alternatively, he ruled the challenged protections were sustainable as part of a comprehensive federal program for the protection of all endangered species.

Fourth Circuit Judge J. Michael Luttig, also on the Supreme Court short list, blasted the majority in a full-throated dissent. The dispute between Luttig and Wilkinson was not merely legal, but philosophical, and it brimmed with mutual censure. Luttig charged the majority with casually ignoring the Supreme Court's most recent rulings that cut back on the scope of Commerce Clause authority.

In response, Wilkinson went for the trifecta, accusing Luttig of undermining three core conservative values: federalism, deference to legislative prerogatives, and respect for the law. First, he excoriated Luttig for "turn[ing] federalism on its head" by ignoring the longstanding role of the federal government in protecting endangered wildlife. He then accused his fellow short-lister of "rework[ing] the relationship between the judiciary and its coordinate branches," and "open[ing] the door to standardless judicial rejection of democratic initiatives of all sorts."

Finally, Wilkinson leveled the ultimate reprimand for any principled jurist, suggesting that Luttig's personal policy preferences -- his "mere expression of judicial derision" for the law -- drove his analysis. Describing the dispute as a classic clash between landowners and environmentalists, Wilkinson concluded his opinion by asserting: "Why the judicial branch should place its thumb on either side of this old political scale is simply beyond our comprehension."

There is little doubt whose thumb Wilkinson saw on the scale. Whatever one might think of the respective positions espoused by Wilkinson and Luttig, they demonstrate a striking dissimilarity in judicial philosophy.

Another short-lister -- Judge John G. Roberts Jr. of the U.S. Court of Appeals for the District of Columbia Circuit -- created a stir by opining on the same issue. In Rancho Viejo v. Norton (D.C. Cir. 2003), the court upheld federal species protections as applied to a real estate developer whose proposed housing project threatened endangered arroyo toads. The panel had little trouble concluding that the commercial housing development fell within the Commerce Clause power.

In dissent from a denial of rehearing en banc, however, Roberts criticized the panel for focusing on the developer's overall conduct rather than asking whether the specific activity being regulated -- harming the toads -- is commercial or would substantially affect interstate commerce. According to Roberts, applicable Supreme Court precedent compels the latter inquiry. Moreover, he viewed the panel's approach as in tension with the Fifth Circuit, which used a much different rationale in upholding federal species protections.

Needless to say, Roberts' dissent was not well-received by the environmental community. But it should be viewed in context. He did not express a position on the constitutionality of single-state species protections, but instead insisted that additional review would "afford the opportunity to consider alternative grounds for sustaining" them. And it is indisputable that federal appellate courts have adopted different rationales in upholding these protections, a relevant consideration in deciding whether to grant a full-court rehearing.

Moreover, Roberts has shown a willingness to part company with his more ideological colleagues. In Barbour v. WMATA (D.C. Cir. 2004), a case implicating hot-button issues regarding Congress's authority under the Spending Clause and Fourteenth Amendment, Roberts broke from Judge David Sentelle, whose dissent rejected rulings by eleven other circuits and concluded that Congress may not condition acceptance of federal funds on a state's consent to private damages suits for disability discrimination. Roberts instead joined the opinion of Judge Merrick Garland upholding the condition.

Former colleagues across the political spectrum have showered bouquets upon Roberts, characterizing him as "possibly the foremost appellate lawyer of his generation" and "one of the two or three best lawyers I have see in more than 30 years." They extol not only his intellect, but also his balanced approach to the law. And his opinions are blessedly free of ideological blather.

In stark contrast to Roberts' dulcet tones is the jarring rhetoric of short-lister Justice Janice Rogers Brown, who sits on the California Supreme Court and stands in a league of her own. Her intemperate pronouncements include the assertion that "today's senior citizens blithely cannibalize their grandchildren because they have a right to get as much 'free' stuff as the political system will permit them to extract." She also has denounced the city of San Francisco as a "kleptocracy" in which "private property is now entirely extinct," an assertion difficult to square with the million-dollar lofts dotting that metropolis.

Far more disturbing than her rhetoric, however, are her ideas. In an April 2000 speech to the Federalist Society, Brown praised the infamous Lochner v. New York ruling, in which the court invalidated a state health statute imposing maximum-hour limits on bakers because it purportedly violated extra-constitutional economic rights. She condemned the court's 1937 repudiation of Lochner as "the triumph of our own socialist revolution." She ridiculed the famous dissent penned by Justice Oliver Wendell Holmes Jr. in Lochner as "all too famous" and "simply wrong." She criticized West Coast Hotel Co. v. Parrish (U.S. 1937) -- which overruled Lochner -- as having "consumed much of the classical conception of the Constitution."

In an August 2000 speech to the Institute for Justice, Brown acknowledged that "the idea that there is an extra constitutional dimension to constitutional law is heresy" among other conservative legal theorists. Indeed, many conservatives have denounced Lochner, including Robert Bork, Antonin Scalia, Edwin Meese, and Orrin Hatch. In Brown's view, however, conservatives need to overcome their "dread" of judicial activism.

Brown's supporters note she criticized Lochner in a 1999 dissent, but they fail to recognize that in her August 2000 speech, she explained she previously disagreed with Lochner but now supports judicial imposition of extra-constitutional rights to promote limited government. And she has applauded three recent regulatory takings rulings as holding "out the promising possibility of a revival of what might be called Lochnerism-lite."

Brown's defenders also contend her views on Lochner should be given little weight in considering her pending nomination to the D.C. Circuit because, as a federal appellate judge, she would be subject to review by the U.S. Supreme Court. But this possibility of review is cold comfort because the Supreme Court agrees to hear less than two per cent of the certiorari petitions filed each year. And because a "Lochnerism-lite" ruling (to use Brown's phraseology) can be disguised as a decision under the Takings Clause or other constitutional provisions, the need for review might not be readily apparent. More to the point, whatever one thinks about putting a Lochner-ite on a federal appeals court, the thought of putting one on the U.S. Supreme Court should be nightmarish to conservatives and liberals alike.

Brown also adheres to an extreme view of regulatory takings. In her dissent in San Remo Hotel v. San Francisco (Cal. 2002), she wrote that any "restriction of any one of the several rights that constitute private property in effect takes that property," unless the restriction addresses a nuisance or provides an offsetting benefit to the landowner. This breathtakingly broad reading of the Takings Clause bears no semblance to mainstream takings jurisprudence, and it threatens myriad environmental protections, zoning laws, and other land use controls. And because the Takings Clause applies to all property (not just real property), her views endanger minimum wage laws, pension plan protections, and many other community protections. In articulating her approach, Brown cited with approval the writings of radical legal theorist Richard Epstein, who acknowledges his theories would invalidate vast chunks of modern legislation.

After examining the respective records of those on the short list, one is struck not by the similarities, but by the differences. A real choice exists with respect to ideology, temperament, and respect for the rule of law, if only our leaders in the White House and the Senate have eyes to see it.

Timothy J. Dowling is chief counsel of Community Rights Counsel, a D.C. public interest law firm that represents state and local officials in constitutional challenges to environmental laws and other community protections.

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