There could be a lot of talk about toads at the confirmation hearings for John Roberts Jr. In one of the few revealing opinions he has written in his brief time on the bench, Judge Roberts voted to reconsider a ruling that said the Endangered Species Act protected the arroyo Southwestern toad from being wiped out by a real estate development. He strongly suggested that Congress could protect only a species whose demise would affect "interstate commerce" - but that toad, he wrote, is a "hapless toad that, for reasons of its own, lives its entire life in California."As if Roberts's humor had to do with the loss of a species! As anyone familiar with the case and with constitutional law knows, Roberts is referring to what is matters in a question about the scope of the Commerce Clause: the fact that federal law attempts to reach to something that is entirely intrastate.
Judge Roberts's opinion, with its wry reference to the possibility that an entire species could be destroyed, disturbed environmentalists.
Is humor forbidden because the case is about the environment and the environment demands solemn reverence? In any event, the words Roberts applied to the toad seem rather affectionate. Congress is trying to protect endangered species, and here's one that's having trouble staying within the range of Congress's power because it has chosen such a narrow range for itself. The hapless toad! That is, the poor toad. Had a liberal expressed sympathy in that form, I suspect Cohen would have perceived a big, beautiful heart. Look at how Justice Blackmun is endlessly adored for writing "Poor Joshua," when he saw how federal law failed to protect a child.
Cohen continues his thoughts about the arroyo toad case:
But its implications go far beyond the environment. It suggests that Judge Roberts - who broke with even a majority of the conservative judges on his court - may hold extreme states' rights views, the kind that could sharply limit Congress's power to protect ordinary Americans from discrimination, pollution and unsafe workplaces."Extreme states' rights views"? Please. The view of the Commerce Clause reflected in that Roberts opinion is that there is some limit to it, that some things that are entirely intrastate and that are not economic activities at all cannot be regulated by Congress. The alternative view is that the Commerce Clause empowers Congress to regulate anything it wants as long as it doesn't violate any constitutional rights. That alternative view is so common that it rarely gets called "extreme," but backing away from it a little and seeing some limit to congressional power is scarcely extreme. Predicting a "sharp limit" to Congress's power over commercial activities like unsafe workplaces is either a deliberate distortion of the recent Commerce Clause cases or an embarrassingly incompetent misreading.
More from Cohen:
Having one more justice who supports weakening Congress could make an enormous difference. Last year, Sandra Day O'Connor, whose place Judge Roberts would take, cast the deciding vote to allow a man in a wheelchair to sue under the Americans with Disabilities Act after he was forced to crawl up the steps of a county courthouse. Four justices insisted that his suit was barred by the 11th Amendment, a modest limitation on the power of federal courts that conservatives have distorted into a sweeping "sovereign immunity" shield for states.
But Justice O'Connor voted with the majority that imposed a limit on Congress's commerce power in the cases about the Gun-Free School Zones Act and the Violence Against Women Act. In fact, Cohen is not talking about a Commerce Clause case here at all, something I doubt many NYT readers will notice. He's talking about a case about the scope of Congress's power to enforce 14th Amendment rights. And the crawling-up-the-steps case, despite its emotion-stirring facts, is about a very particular and limited issue. But go ahead and use it to bolster the myth of Justice O'Connor as a giant bulwark protecting the weak from the strong.
I detest the exaggerated statements about federalism and "states' rights" that typify the NYT coverage of the Supreme Court. You can legitimately take a very broad view of congressional power, interpreting the Commerce Clause so broadly that Congress has an unfettered choice in what to regulate. Justice Breyer does an excellent job of articulating that viewpoint on the Court. No one expects a Bush appointee to go to that end of the spectrum. Roberts will surely have some interest in federalism-based limits on congressional power. I wish the NYT could calm down and take the trouble to explain exactly what these limitations are likely to be.