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Wednesday, July 20, 2005

Return of the Hapless Toad 

A prophet we wish to honor is Benjamin Wittes, who wrote an article in the May Atlantic on the disturbing prospect of a Supreme Court packed with, or tilted by, Bush nominees. Alarmist liberals, Wittes said, tend to exaggerate the danger that an even-more-conservative court would pose to abortion, civil liberties, and the like. However, they underestimate the threat to another area "where the stakes are truly immense": protection of the environment.

Mr. Wittes's article is online but available to print subscribers only. We ran a key excerpt here:
Consider the Constitution's commerce clause, which empowers the national legislature to regulate "commerce … among the several states." Since the New Deal the commerce clause has been construed very broadly, becoming the constitutional backbone of much important civil-rights legislation and of all the major environmental laws. Yet since 1995 the Court has issued a series of decisions that emphasize the limits of the commerce power, requiring that laws enacted under it deal in some sense with—well, interstate commerce. I have considerable sympathy for this line of argument, but its potential dangers to the environment are hard to overstate. For while the environment itself is intrinsically interstate, not all environmental-protection measures obviously constitute regulations of commerce "among the several states"—or even regulations of commerce at all. Can the government, under the Endangered Species Act, protect—as one conservative judge poetically put it—"a hapless toad that, for reasons of its own, lives its entire life in California"? Can it, under the Clean Water Act, protect isolated seasonal pools (which are not interstate) used by migratory birds (which are)? . . . .

In recent years the Rehnquist Court has breathed life back into the notion of states' immunity from suits for money—an immunity rooted in the Eleventh Amendment . . . . A reinvigorated Eleventh Amendment could prove a disaster for federal environmental laws, which because of their unique structure could be unusually vulnerable to this doctrine.
We'll give you three guesses as to which conservative jurist wrote the "hapless toad" dissent. You'll find the answer here.

CLARIFICATION: Our far too infrequent visitor FFP asks us to point out that Roberts "did not dissent from the opinion by a three-judge appellate panel that protected the toad," but rather from a "denial of en banc review of that decision by the full D.C. Circuit." More details in comments below.

REQUEST FOR FURTHER CLARIFICATION: We are desperately hoping that some enterprising reader will persuade us that we should not be deeply troubled by the following smirches on Mr. Roberts's curriculum vitae:
1.) In a second abortion-related case, Roberts co-authored the government’s amicus brief in a private suit brought against Operation Rescue by an abortion clinic it had targeted. The brief argued that Operation Rescue was not engaged in a conspiracy to deprive women of equal protection. Roberts took this position in spite of Operation Rescue’s admission that its goal was to prevent women from obtaining abortions and to shut down the clinic during its protests. Although the government’s brief acknowledged that only women could become pregnant, it argued that conspiring to prevent people from seeking constitutionally-protected abortions did not constitute gender discrimination. It asserted that, at worst, Operation Rescue was discriminating against pregnant people, not women.

The brief in Bray also took the additional step of pointing out that the Supreme Court had not previously decided whether women were protected from private conspiracies to violate their equal protection rights, under the relevant civil rights statute,and urged the Court not to reach a decision on this question, rather than arguing that the Court should definitively state that women should be afforded protection by the statute, as was within the Court’s power in this case. [via Billmon]

2.) As a member of the U.S. Court of Appeals for the District of Columbia Circuit, Roberts wrote a decision last year upholding the arrest of a 12-year-old girl who violated the ban on eating food on Washington's subway system, Metro . . . .

"No one is very happy about the events that led to this litigation," he wrote. "Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later — all for eating a single french fry" . . . .

"The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the District court, we conclude that they did not, and accordingly we affirm." [via Chris Floyd]

3.) A federal appeals court yesterday backed the Bush administration's plan to let special panels of military officers conduct trials of terrorism suspects detained in the U.S. military prison at Guantanamo Bay, Cuba, overturning a lower-court decision that has blocked the "military commissions" for the past eight months . . . .

The ruling was an important test of the government's strategy of denying such detainees access not only to civilian courts but also to the more formal proceedings of military courts-martial, in which they would enjoy additional rights and legal protections. One of the judges on the deciding panel from the U.S. Court of Appeals for the District of Columbia Circuit, John G. Roberts, is said to be on the administration's list of possible Supreme Court nominees . . . .

The lower court had concluded that Hamdan [bin Laden's driver] and others at Guantanamo Bay are entitled to hearings in advance of a criminal trial in which military officers would decide whether they qualified as prisoners of war. This procedure is required by the Geneva Conventions, the international treaties that protect people detained by military forces.

Prisoners of war are supposed to be tried in courts-martial rather than by the less formal military commissions . . . . But the administration has vigorously sought to avoid courts-martial, which have rules that make it more difficult to keep defendants from knowing all the evidence against them.

The appellate court swept aside the lower court's decision in what amounted to a general endorsement of a legal theory that the president has broad powers under the Constitution to decide how military detainees are to be handled during a time of conflict . . . .

The panel said courts should defer to President Bush's decision in 2002 that the Geneva Conventions do not apply to detainees Bush declares as enemy combatants and that, in any event, the conventions are not enforceable by U.S. courts in lawsuits brought by foreigners. [via Chris Floyd]

4.) In a 1990 case, the amicus brief co-authored by Roberts in his capacity as Deputy Solicitor General sought to weaken the standard and limit the timeline for court-enforced desegregation decrees in the nation’s schools. Roberts argued that Oklahoma City schools, which had been declared “unitary” in 1977, could not again be subjected to a desegregation decree in 1985, despite the school board’s decision to eliminate busing in elementary schools, thus returning a number of schools that had previously been desegregated to one-race status.

5.) After a 1980 Supreme Court decision, Mobile v. Bolden, dramatically weakaned certain sections of the Voting Rights Act, Roberts was involved in the [Reagan] administration’s effort to prevent Congress from overturning the Supreme Court’s action. The Supreme Court had decided, despite a lack of textual basis for this interpretation of the statute, that plaintiffs claiming certain violations of the Voting Rights Act, such as minority vote dilution, had to prove that the discrimination was intentional rather than just having a discriminatory effect. Roberts joined the Administration in opposing the “Section 2” extension of the Act, strongly supported by both the House and the Republican-controlled Senate, which would have reinstated the effects standard. Instead, he participated in the effort to amend the extension of the Act so that voting rights plaintiffs would continue to have to prove discriminatory intent, a much harder task.

6.) An appeals court panel threw out a $959 million judgment Friday for U.S. prisoners of war who say they were tortured by the Iraqi military during the 1991 Gulf War, ruling Congress never authorized such lawsuits against foreign governments.

The U.S. Court of Appeals for the D.C. Circuit overturned a lower court ruling that said 17 former POWs and 37 family members were entitled to the damages under a federal statute allowing suits involving countries which financed or aided terrorists.

The three-judge panel said the statute only allows lawsuits for pain and suffering if they are filed against agents and officers of those foreign states responsible for the torture who are not acting on behalf of their government. Thus, even though the lawsuit also names Saddam Hussein, he is immune because the POWs sued him for his alleged activities as Iraq’s president, the panel said . . . .

Judge John Roberts filed a separate concurring opinion . . . .

The Iraqi government never appeared in U.S. court to argue its case, leading to the default judgment last July. But the Justice Department intervened after the POWs sought to be paid from frozen Iraqi assets in the United States, saying the money was needed to rebuild Iraq. [Or perhaps to offset the more than 8 billion dollars that inexplicably vanished from the Iraqi oil fund under U.S. supervision -- S.]

[Government lawyers] also argued that the POWs weren’t entitled to the money because President Bush made an official determination in May 2003 that a statute allowing payment from frozen assets wasn’t applicable to Iraq because it no longer supported terrorism after Saddam was overthrown.

In his concurring opinion, Roberts agreed. Denying Bush’s authority to make these determinations and having them apply retroactively could unfairly force new regimes like those in Iraq to pay for the wrongs of the previous ones, he said. [via Billmon]

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