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September 13, 2005

Roberts Actually Says Something (Sort of)

Okay, I've spent way too much time today watching the Supreme Court hearings, especially since Roberts has mostly just repeated his mantra of "obviously interesting precedents by that thar Supreme Court. I'll take them real serious when I make my own decision." In substance he's said nothing other than that he's not a crazy loon out to overturn every liberal precedent he can -- not nothing but not more than we already knew.

But when Diane Feinstein asked him about the Commerce Clause and the Supreme Court striking down Congressional laws in Lopez, he actually got animated and said the following:

I would point out in this area in particular, it's important to look at the most recent case, which is the Raich case, the medical marijuana case, because the argument there was that the two decisions you mention that were the first cases in sixty years, Lopez and Morrison, [where] the Congress lacks power in these specific cases to regulate. What the Supreme Court said in the Raich case, which I think is very important, it said that there are a lot more precedents on the Commerce Clause than Lopez and Morrison, and the correct way to regard them is as two decisions in a two hundred year sweep of constitutional decisions, where the Supreme Court has recognized extremely broad authority on Congress's part going back to Gibbons v. Ogden under Chief Justice John Marshall, which were important in binding the nation together as a single commercial unit.
This is obviously a bit of tea leaves but it was a more proactive statement where he himself raised Raich as the key decision to look to for interpreting the Commerce Clause.

And Roberts endorsed my interpretation of his decision in Rancho Viejo, LLC v. Norton, , noting he wanted to sustain the Endangered Species Act, just not on the grounds the majority of the DC Circuit wanted to:

I did not take the position that it was outside the Commerce Clause. It was a question of which grounds under the Commerce Clause we should look at.
It basically reinforces my general sense that Roberts will probably consistently chip away at Roe v. Wade but probably won't look to dramatically expand the federalism decisions of recent years.

Posted by Nathan at September 13, 2005 04:09 PM