Kennedy on Roberts
July 25, 2005; Page A14 WSJ
In his two years on the appeals bench, Supreme Court nominee John Roberts has authored about 40 opinions, but it's a one-and-a-half page dissent that has Ted Kennedy fulminating. The Senator from Massachusetts is outraged about a Commerce Clause case called Rancho Viejo v. Norton, which, in the Kennedy legal interpretation, threatens "Social Security, Medicare, the minimum wage" and the environment. Is that all?
In Rancho Viejo, a real-estate company challenged the Interior Department's application of the Endangered Species Act to halt a project that might disturb an endangered species known as the arroyo Southwestern toad, whose picture we publish nearby. At issue was Congress's power to regulate interstate commerce -- in this case, the movement of the toad, which, as Judge Roberts pointed out, is entirely intrastate. The toad is a homebody; it does not travel out of California.
It's a long hop from the arroyo toad to Social Security or the minimum wage, and we confess to some difficulty in following Senator Kennedy's line of reasoning. Nor do we agree that the interpretation of the Commerce Clause is "settled," as he asserts. If anything, the Supreme Court confused matters in the past term.
Judge Roberts said that federal regulation of the toad appeared to be "inconsistent" with Lopez, the 1995 case in which the Supreme Court ruled that gun possession near a school did not constitute economic activity. But he was writing in 2003 -- before last term's controversial Raich decision, in which a 6-3 Court seemed to retreat from Lopez in saying that federal law can trump state laws permitting the possession of marijuana for medical use.
Also worth noting is that Judge Roberts's four-paragraph dissent was not a full-fledged opinion on the merits of Rancho Viejo; he was merely disagreeing with the majority's decision to deny a review of the case by the full court. This makes Mr. Kennedy's denunciation of the "sweeping implications" of Judge Roberts's words even more dishonest.
One final quote from Mr. Kennedy on Judge Roberts: "I can imagine few things worse for our seniors, for the disabled, for workers and for families than to place someone on the highest court in the land who would put these protections at risk."
Barring surprises, the debate over Judge Roberts's confirmation is widely expected not to be rancorous. But judging from Senator Kennedy's opening salvo, it won't be because he wants it that way. |
