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Roberts and the arroyo toad

With so few opinions in his two years as a junior member of the D.C. Circuit, there is a lot of focus on Judge Roberts' dissent from a denial of an en banc review in Rancho Viejo, LLC v. Norton, with opponents seizing on this decision in an effort to tar Roberts as anti-environmentalist and worse. I was interviewed on this topic in a front-page article in my old hometown paper. (Bill Walsh, "'Hapless toad' case fuels fears of Roberts' foes", New Orleans Times-Picayune, Jul. 22). I noted, but didn't seem to persuade the writer, that Judge Roberts' dissent did not necessarily indicate that he intended to strike down the Endangered Species Act as unconstitutional, but rather asked the D.C. Circuit to revise its jurisprudence on the question in a manner consistent with Supreme Court precedent. Tom Goldstein makes the same point in more detail today on the Supreme Court Nomination blog.

As I told the Times-Picayune, Justice O'Connor, along with Justice Thomas, was the justice who most consistently applied the Commerce Clause narrowly to restrict federal power. Even if Roberts is in the Thomas/O'Connor mode on this question (something that's likely, but far from certain), last term's decision in Gonzales v. Raich shows that there are still six justices on the Court who have a broad view of the Commerce Clause power, and a Roberts confirmation is unlikely to move the Court to the right on federalism.



Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.