Two days after President Bush nominated Judge John G. Roberts to replace Justice Sandra Day OConnor, she attended the Ninth Circuit judicial conference. The conference is a gathering of western judges and lawyers organized to discuss significant issues affecting the bench and bar. During her appearance, Justice OConnor expressed concern about federal encroachments on the states reserved powers. She described the states as laboratories of democracy and stressed that the federal government should let them try things and see how it works. This respect for the states as co-equals with the federal government has been a hallmark of Justice OConnors jurisprudence. During the last decade she has been a leader in the Supreme Courts so-called New Federalism. The retirement of Justice OConnor could result in a Court less inclined to protect the states reserved powers. Her remarks at the judicial conference underscore how much is at stake with the Roberts nomination.
During her tenure, the Court struck down several federal statutes imposing unfunded federal mandates on the states as well as statutes forcing the states to subject themselves to suit in their own court systems. In these 5-4 decisions, Justice OConnor was often the deciding vote.
In another series of cases primarily dealing with Congresss authority to regulate interstate commerce, the Court has enforced constitutional restrictions on Congresss power to legislate.
For example, in United States v. Lopez (1995), the Court struck down a federal statute prohibiting possession of firearms near school premises. The government argued that the statute was a regulation of commerce because guns could disrupt schools, hurt education, and therefore result in an unproductive workforce in the national economy. The Court rejected the governments argument, holding that such a broad interpretation of commerce would permit Congress to regulate almost every activity in the United States and would infringe on many areas traditionally of state concern.
Unfortunately, it is difficult to gage Judge Robertss stance on the New Federalism. He has no paper trail for his friends to tout or enemies to attack. Whether in private practice or working for the government, Roberts has served as one of the nations foremost advocates. And an advocate simply makes the strongest arguments on behalf of his client. When he was confirmed to the D.C. Court of Appeals in 2003, Roberts made clear that lawyers must make arguments even if they disagree with them. If a lawyer failed to do so, Roberts noted, he wouldnt be doing his job. Hence, the myriad legal briefs and memos Roberts has written over the years provide little assistance in evaluating his judicial philosophy.
Considering Roberts has served only two years as a federal judge, he has authored very few significant court decisions. However, the one opinion that provides a glimpse into attitude toward the New Federalism is Judge Robertss dissenting opinion in Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (2003). Rancho Viejo concerned an order of the federal Fish and Wildlife Service directing a developer to remove a fence from his property to accommodate the movements of arroyo toads. A panel of the D.C. Court of Appeals upheld the order under the Commerce Clause, but Judge Roberts urged that the entire Court rehear this issue.
Robertss opinion indicated that the protection of a non-commercial, local toad was not commerce subject to federal regulation. The activity being regulated (i.e., the erection of a fence) on private property did not, in Judge Robertss opinion, substantially affect interstate commerce. Judge Roberts described the panels reasoning as inconsistent with the Supreme Courts holdings in United States v. Lopez and other New Federalism cases. He feared that the panels broad approach would destroy any real limits on federal power under the Commerce Clause.
Decorum prevents Justice OConnor from providing any assessment of Judge Roberts fitness to replace her. However, if his Rancho Viejo opinion is any guidance, Justice OConnor and other friends of the New Federalism should be cautiously optimistic with the Presidents nominee.