Judge Roberts simply observed that a toad that lives its entire life in one state and is not the source of any commercial dealings might not fall into the category of interstate commerce.

Mr. Toad’s Wild Ride

By Alexander Schwab

A California toad is creating quite a stir in Judge John Roberts’ nomination to the Supreme Court of the United States. And no, it’s not Barbara Boxer.

Judge Roberts, whose indefatigably mainstream record on the bench has frustrated attempts to brand him an extremist, is now under fire for an opinion he penned that discusses the federal government’s power over the habitat of the Arroyo Southwestern Toad. Never mind that the opinion was a dissent, and so establishes no precedent; never mind that the court was simply ruling on whether or not to hear the case; never mind that Judge Roberts was not alone. Judge Roberts’ failure to support the toad (via the vehicle of federal regulation) proves he must be an anti-environmentalist reactionary.

Rancho Viejo v. Norton concerned a proposed housing development, blocked by the federal government through the Endangered Species Act after the Department of the Interior determined the construction project would endanger the Arroyo Southwestern. The DC Circuit panel upheld the governmental intervention, spurring a petition from Rancho Viejo urging the court to reconsider en banc. A majority denied the petition, but Judge Roberts and a fellow judge dissented, positing that the decision might merit examination in light of certain Supreme Court precedents limiting the extent of federal regulatory power.

However, the left-wing People for the American Way (PFAW), finding itself with extensive funds and no useful way to spend them, has decided to make an issue of an otherwise innocuous suggestion for greater scrutiny. They hope with their press releases that the general American populace comprehends as little of the judicial process as they do, transforming Rancho Viejo v. Norton into the public trial of Judge Roberts v. Endangered Species.

This method of “creative” simplification is just the latest example of a deep error in understanding the role of courts. The judges in this case were not asked to rule on whether they liked toads and found them worth protecting, but whether the Constitution provides Congress with the power to do so. Under Article I of the Constitution, Congress has the power to regulate interstate commerce (the so-called “Commerce Clause”). Judge Roberts simply observed that a toad that lives its entire life in one state and is not the source of any commercial dealings might not fall into the category of interstate commerce. What an atrocity.

To see this case as an indication of whether one likes or dislikes toads (at least the Arroyo Southwestern variety) is to view legal jurisprudence through the lens of political policymaking — the very fate Bush seeks to avoid in his judicial nominations. Instead, Judge Roberts nobly adheres to the words of his mentor, Chief Justice Rehnquist: “A judge is bound to decide each case fairly in a court with the relevant facts and the applicable law even when the decision is not what the home crowd wants.”

Environmentalism is not the issue; the Commerce Clause is. Through a near-boundless interpretation of “interstate commerce,” the Supreme Court has justified federal government encroachment in all aspects of American life. Special interests tout amphibian welfare, but their true concern is the restriction on government that stems from an honest reading of the Commerce Clause. As Barry Goldwater cautioned, "the government that can give you everything is the very same government that can take it all away."

When President Bush was sworn into office, he took an oath — as every President does — to protect the Constitution of the United States. Mr. Justice John Roberts may be his best means of fulfilling that obligation.

Alexander Schwab is a research assistant at the Center for Individual Freedom.

July 26, 2005
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