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Supreme Court nominee's vote in toad case is dissected for legal views

The Associated Press

Monday, August 1, 2005
Gina Holland

A toad may offer insight into John Roberts' legal philosophy.

The Supreme Court nominee voted against the amphibian in a 2003 case testing the powers of the federal government, a decision that suggests he may be inclined to support state or local interests on issues from civil rights to pollution control if confirmed to the high court.

Justices constantly mediate turf battles between states and the federal government. And under Chief Justice William H. Rehnquist, the court has tended to side with the states.

Senate Democrats plan to vigorously question Roberts about his views, with Sen. Edward M. Kennedy, D-Mass., among those on the Judiciary Committee who say they want to know more about where he believes federal interests stop. Some Democrats have said they fear he will support scaling back longtime federal protections for the elderly, disabled, and the environment.

Roberts, 50, has not spoken publicly since being picked by President Bush to replace retiring Sandra Day O'Connor. He dealt with the issue of federal-state control just once in his two years as an appeals court judge.

In that case, Roberts suggested that federal power is limited, urging the court to reconsider its decision restricting a San Diego area construction project because it encroached on the habitat of the rare arroyo southwestern toad. He questioned whether "a hapless toad that, for reasons of its own, lives its entire life" in one state could be regulated by the federal government. His view did not prevail.
Doug Kendall, executive director of the environmental public interest law firm Community Rights Counsel, called Roberts' reasoning "enormously disconcerting."

Richard Garnett, a Notre Dame law professor and former clerk for Rehnquist, said Roberts did not reveal any radical views or propose striking down the Endangered Species Act. "I don't think this indicates any eagerness for courts to start invalidating federal laws," he said.

At issue is the Constitution's "commerce clause," which empowers Congress to "regulate commerce with foreign nations, and among the several states."

"When you think commerce clause, don't think technical and meaningless," said Cass Sunstein, a University of Chicago law professor. "Think in what ways can the elected representatives of the people provide protection against serious harm."

The Supreme Court has just one states' rights case to review this fall, but it's among the most important issues the justices will decide: whether Congress has the authority to prohibit physician-assisted suicide if a state allows it. This summer, the court used the commerce clause to rule in favor of federal regulation of medical marijuana and to strike down state wine shipment restrictions.

O'Connor, the court's first female, generally has been a strong states' rights advocate. But not always. For example, two years ago she joined a ruling that found state government workers are protected under a federal law guaranteeing they will not lose their jobs if they take time off to deal with family emergencies.
Supreme Court showdowns over federal power date back more than 100 years. In 1870, the court struck down a national law that banned sales of illuminating oils like kerosene. Limits should be set state-by-state, the justices decided.

Under Rehnquist's leadership, the Supreme Court has overturned federal restrictions on guns near schools and a law intended to protect female victims of violent crime. The reasoning? That Congress overstepped its bounds under the commerce clause.

In June, however, Rehnquist was on the losing end of a major federal power case. The court ruled 6-3 that federal agents may arrest people who use pot to ease their pain, despite state medical marijuana laws.
Justice Clarence Thomas, the court member with perhaps the strongest views on the commerce clause, said the ruling was so broad that "the federal government may now regulate quilting bees, clothes drives and potluck suppers throughout the 50 states."

Stephen McAllister, a former Thomas law clerk and law school dean at the University of Kansas, said conservatives want courts to keep Congress from using "commerce" as an excuse to meddle in everything.
"When you wake up in the morning you affect commerce. The fear is commerce power becomes the general police power for the federal government," he said.

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