IMAGE: Judge John Roberts
Shaun Heasley  /  Reuters file
Judge John Roberts
updated 8/3/2005 12:15:58 PM ET 2005-08-03T16:15:58

A toad may offer insight into John Roberts’ legal philosophy.

The Supreme Court nominee voted against the amphibian in a 2003 case testing the powers of the federal government, a decision that suggests he may be inclined to support state or local interests on issues from civil rights to pollution control if confirmed to the high court.

Justices constantly mediate turf battles between states and the federal government. And under Chief Justice William H. Rehnquist, the court has tended to side with the states.

Senate Democrats plan to vigorously question Roberts about his views, with Sen. Edward M. Kennedy, D-Mass., among those on the Judiciary Committee who say they want to know more about where he believes federal interests stop. Some Democrats have said they fear he will support scaling back longtime federal protections for the elderly, disabled, and the environment.

Roberts, 50, has not spoken publicly since being picked by President Bush to replace retiring Sandra Day O’Connor. He dealt with the issue of federal-state control just once in his two years as an appeals court judge.

In that case, Roberts suggested that federal power is limited, urging the other appeals judges to reconsider a decision restricting a San Diego area construction project because it encroached on the habitat of the rare arroyo southwestern toad. He questioned whether “a hapless toad that, for reasons of its own, lives its entire life” in one state could be regulated by the federal government. His view did not prevail.

Doug Kendall, executive director of the environmental public interest law firm Community Rights Counsel, called Roberts’ reasoning “enormously disconcerting.”

Richard Garnett, a Notre Dame law professor and former clerk for Rehnquist, said Roberts did not reveal any radical views or propose striking down the Endangered Species Act. “I don’t think this indicates any eagerness for courts to start invalidating federal laws,” he said.

At issue is the Constitution’s “commerce clause,” which empowers Congress to “regulate commerce with foreign nations, and among the several states.”

“When you think commerce clause, don’t think technical and meaningless,” said Cass Sunstein, a University of Chicago law professor. “Think in what ways can the elected representatives of the people provide protection against serious harm.”

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