The Court also refused to review a new test of its federalism views, a challenge to the Endangered Species Act when it is used to protect a species of insects found in only one state and having no commercial value.From yesterday's Linda Greenhouse piece in the NYT, discussing the medical marijuana case:
Professor Mark V. Tushnet of Georgetown University Law Center, the author of a new book, "A Court Divided: The Rehnquist Court and the Future of Constitutional Law," said that the earlier decisions had "brought the justices to a threshold that was far away when Rehnquist joined the court." And now, he said, "they have to decide whether to stay where they are, or continue on, or retreat."
The marijuana case "does not necessarily mean a retreat," he said. "It was an easy case, a case at the heart of national regulatory authority." Professor Tushnet said a more telling case would be a challenge to the application of the Endangered Species Act to a species without commercial utility, found only within one state.
Such a case is on the court's calendar, awaiting the justices' decision whether to hear it. The question in GDF Realty Investments v. Norton is whether Congress has authority to apply the Endangered Species Act to require protection of six species of cave-dwelling insects that live in caves west of Austin, Tex.