The fractious debate over federalism will be
center stage at his confirmation hearings.
Who exactly is Supreme Court nominee John G. Roberts Jr.,
and what does he stand for? Some Washington Democrats see
the answer in Roberts' association with the conservative Federalist
Society, which advocates states' rights and limits on federal
power. But the White House has gone out of its way to insist
that Roberts, currently a judge on the U.S. Court of Appeals
for the D.C. Circuit, has never been a member of the society.
The spat may seem to be just another Beltway brouhaha, but
don't be fooled. It is at the center of a heated debate over
Roberts and the sort of Supreme Court Justice he would make.
In the last decade the federalist movement, made up of conservative
lawyers and legal scholars who believe that Washington has
run roughshod over the powers that the Constitution reserves
for the states, has grown increasingly influential. The movement's
record before the Supreme Court is mixed, but the court has
shifted more sharply toward reining in congressional power
in recent years. Given Roberts' limited record, everyone from
corporate executives and environmentalists to abortion-rights
activists wants to know whether he'll push the cause of states'
Business has a huge stake in that question. For decades,
Congress has invoked its Constitutional authority "to
regulate Commerce...among the several States" to intervene
in everything from employment practices to protections for
endangered species. As a rule, corporations abhor regulation.
But when regulation is inevitable, they would rather have
a single national standard than 50 diverse state rules. States'
rights are "a double-edged sword for business,"
says Robert Gordon, senior vice-president of the liberal Center
for American Progress. "Companies would like to be rid
of a lot of federal regulation, but if Congress lost the power
to regulate in a lot of these areas, you'd have a patchwork."
No one expects Roberts' views on states' rights vs. federal
powers to derail his candidacy. Yet figuring out where he
comes down will be a central focus of his confirmation hearings.
His leanings will have big implications for a host of hot-button
issues, from economic regulation to abortion to civil rights.
And while the tussle over federal power encompasses several
legal principles, much of the debate will come down to how
Roberts might interpret the Constitution's commerce clause.
Says Douglas T. Kendall, executive director of the Community
Rights Counsel, a Washington-based public-interest law firm:
"The stakes in the direction of the commerce clause could
not be any higher."
The last time the commerce clause took center stage was in
the late 1930s: President Franklin D. Roosevelt was threatening
to pack the Supreme Court to dilute the power of conservative
justices who struck down New Deal legislation as an overreach
of Congress' authority. After FDR's 1936 reelection the court
finally saw things his way, upholding the National Labor Relations
Act in 1937. Since then successive courts have allowed Congress
to expand the commerce clause to promote Social Security,
the minimum wage, the Civil Rights Act, and other programs.
When the 1960s civil rights movement discredited "states'
rights" as a euphemism for segregation, federal power
But 10 years ago, Chief Justice William H. Rehnquist hit
the brakes. In 1995, the Supreme Court struck down a federal
law requiring states to maintain gun-free zones around schools,
ruling that the statute had nothing to do with interstate
commerce. In 1997 the court invalidated the federal Religious
Freedom Restoration Act, which was meant to protect religious
worship from such "undue burdens" as restrictive
zoning imposed by state and local governments.
The court delivered a double whammy in 2000 when it weakened
the Age Discrimination in Employment Act and watered down
the Violence Against Women Act. The following year the justices
limited the scope of the Clean Water Act and gave a nod to
state sovereignty with a decision that stripped state workers
of their right to sue under the Americans with Disabilities
But the states' rights backers aren't winning them all --
which makes Roberts' role as a replacement for retiring Justice
Sandra Day O'Connor all the more crucial. In recent years,
O'Connor moderated her long-held support of states' over federal
power. In 2003 she joined a 6-3 majority that stunned court
watchers by upholding congressional authority to pass the
Family & Medical Leave Act. This past June advocates of
a limited federal role were dealt another blow when the Supreme
Court ruled that the Justice Dept.'s authority to police illegal
drugs trumped a California law that allowed seriously ill
patients to use marijuana for medicinal purposes.
A BIG QUESTION MARK
Democrats already are grilling Roberts on his view of the
commerce clause, and they have won some assurances. After
a private July 26 meeting with the judge, Senate Judiciary
Committee member Charles E. Schumer (D-N.Y.) was cautiously
optimistic. "I think a lot of people are going to be
happy with his views on the commerce clause -- at least people
of my philosophy," Schumer says.
Still, Roberts' ultimate stance in the states-vs.-feds struggle
looms as a big question mark. Before he became a judge in
2003, Roberts had argued both sides before the Supreme Court.
As a lawyer for the U.S. Chamber of Commerce, he supported
federal marine safety standards when a state court wanted
to punish a boat maker for not installing propeller guards.
But in 2002 he successfully defended California's right to
temporarily prevent building near Lake Tahoe to protect against
overdevelopment. Local landowners had argued that the state
was unconstitutionally depriving them of higher returns on
As a judge, Roberts has faced the states' rights question
only once. In his now-famous opinion on the arroyo Southwestern
toad in Rancho Viejo v. Norton, he was skeptical of how the
Endangered Species Act could invoke interstate commerce to
protect a toad that lives only in California. But while Roberts
dissented from the majority, which decided in the toad's favor,
he didn't join fellow judge David B. Sentelle, who slammed
the majority for upholding regulation of "an activity
that is neither interstate nor commerce." Roberts "could
have gone with Sentelle to indicate he was part of the brigade
of fire-breathing conservatives, and he didn't," says
Simon Lazarus, public policy counsel to the National Senior
Citizens Law Center.
Conservatives hope Roberts will breathe more fire once he
has donned the Supreme Court's robes. In today's expansive
view of the commerce clause, "Congress has the power
to regulate anything and everything," says Roger Pilon,
vice-president for legal affairs at the libertarian Cato Institute.
"The result of that is you've got a leviathan instead
of the limited government that James Madison envisioned."
Liberals are just fine with that. And conservatives have
been known to put pragmatism over their states' rights principles,
as when business pushes Uncle Sam to preempt state regulators
or when congressional Republicans snatched the Terry Schiavo
right-to-die case out of the Florida courts. So when Roberts
faces senators in September, both sides of the political spectrum
will be eager to try to pin the Supreme Court nominee down.
Given the wide swath that federalism cuts through American
life, his answers could reverberate for a generation and beyond.