John Roberts to be named next Associate Justice
Roberts's dissent in Rancho Viejo strongly suggested that he thought it would be unconstitutional to apply the Endangered Species Act in this case. By his vote to rehear the case and thus potentially reverse the district court, Roberts indicated that he may well be ready to join the ranks of such right-wing officials as Judge Michael Luttig (who dissented in Gibbs) and Alabama Attorney General William Pryor - nominated by President Bush to the Eleventh Circuit - in their efforts to severely limit the authority of Congress to protect environmental quality as well as the rights and interests of ordinary Americans.The dissent was against a ruling upholding the constitutionality of the ESA. See a pattern?
In his dissent from a denial of rehearing en banc, Judge Roberts criticized the panel's holding that a regulation governing the treatment of a non-commercial species of wildlife was within Congress's power under the Commerce Clause. He argued that Lopez and Morrison required the court to adopt a narrower rule for Commerce Clause challenges, but also suggested that there might be other bases on which to sustain the regulation.SCOTUSblog has a handy four part series (1, 2, 3, 4). The lead off by noting:
Given his prior government positions and high profile as a Supreme Court advocate, John Roberts is a very well known commodity to the Washington conservative legal establishment that will be so important to advising the President on his nomination. He also notably can be said to have argued for the overruling of Roe v. Wade, a fact that would cause religious conservatives to embrace him: he signed the United States's brief in Rust v. Sullivan, which included a pointed (if gratuitous) statement that the Administration believed that "Roe was wrongly decided and should be overruled." But he took that position as a government lawyer while in the Solicitor General's office, where he was advocating the position of the Administration, a fact that makes it substantially more difficult to block him on that ground. I am not aware of any public statements by Judge Roberts regarding his personal view on whether Roe should be overruled.From the third:
Conservatives also would appreciate that Judge Roberts was on the brief for the United States in Lee v. Weisman, a high profile case in which the government advocated narrowing the wall separating church and state.
The principal political advantage of John Roberts is that there doesn't seem to be any basis upon which to mount a filibuster against himYou'll be hearing a lot about Rancho Viejo v. Norton in the months to come.
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