Analysis: John Roberts and the Hapless Toad
SCNB
By Tom Goldstein
Members of the Senate Judiciary Committee are certain to question Judge Roberts about his dissent from the denial of rehearing en banc in the "hapless toad" case, Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (CADC 2003). My sense is that it is an important subject of questioning, but that the importance of the opinion has been seriously overblown, likely because Judge Roberts hasn't had the opportunity to write much of significance on hot-button issues in his short time on the court of appeals.
Background
The plaintiff in the case, Rancho Viejo, wanted to build a housing development. The Department of the Interior determined that the plan would endanger the arroyo southwestern toad, which Judge Roberts would later call -- in a light turn of phrase that is one of his traits -- "a hapless toad that, for reasons of its own, lives its entire life in California." Rancho Viejo filed suit in federal court alleging that this application of the Act exceeded Congress's powers under the Commerce Clause under the Supreme Court's decisions in United States v. Lopez, 514 U.S. 549 (1995) (invalidating in part the Gun Free School Zone Act) and United States v. Morrison, 529 U.S. 598 (2000) (invalidating in part the Violence Against Women Act).
A panel of the D.C. Circuit rejected that claim. Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (CADC 2003). Judge Garland wrote an opinion joined by Chief Judge Ginsburg, who also wrote a separate concurrence, and Judge Edwards.
In distinguishing the Supreme Court's decision in Morrison, the panel found it critical that "the ESA regulates takings, not toads" -- i.e., that the statute was constitutional because the challenged housing development affects interstate commerce, even if the toads themselves did not. "Th[e] regulated activity is Rancho Viejo's planned commercial development, not the arroyo toad that it threatens." By contrast, the court of appeals explained, the statutes in Morrison and Lopez "involved the regulation of purely noneconomic activity" that did not sufficiently implicate interstate commerce. |
