A toad may offer insight into John Roberts'
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
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
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.