Skip to main content

Toad case reveals Roberts as activist

Opinion goes beyond precedent, would reject species protection

By Julie Hilden
FindLawexternal link Columnist
Special to

FOR THE PUBLIC  External site icon

LAW DICTIONARY  External site icon

(FINDLAW) -- Supreme Court nominee John Roberts serves on the U.S. Court of Appeals for the D.C. Circuit -- an immensely influential circuit court.

One of the few controversial opinions Roberts has written while serving on that court is his dissent from the denial of rehearing in the 2003 case of Rancho Viejo v. Norton.

Though he cites U.S. Supreme Court precedents in favor of his view, Roberts ventures into the very kind of judicial activism conservatives most condemn. Ultimately, his dissent is so extreme as to, in effect, reject the protections of the federal Endangered Species Act.

The D.C. circuit is tasked with interpreting many federal laws, and, in effect, overseeing the actions of many federal agencies. It is often referred to as the second most powerful court in the United States.

A nominee's career while serving as a judge on the D.C. circuit is therefore a relatively good predictor for his career as a Supreme Court justice.

But it is not a perfect predictor, because a circuit judge is bound to obey Supreme Court precedents, while a high court justice can vote to overrule such precedents.

While D.C. circuit judges must obey Supreme Court precedent, they can vote for the overruling of the circuit's own precedent.

Initially, a case on appeal to the D.C. circuit is decided by a three-judge panel drawn from all the circuit's judges. That panel cannot overrule circuit precedent.

Next, the entire set of the nine active judges on the circuit can decide whether to call for the case to be reheard by all nine.

In Rancho Viejo, Roberts voted for a rehearing, but the majority did not, so the case never went before all nine judges.

After learning that rehearing was denied, Roberts and another judge each wrote a dissenting opinion.

The rehearing panel would have had a much freer hand than the original three-judge panel in deciding how to resolve the case.

Applying federal law in California

The issue before the three-judge panel was whether the U.S. Fish and Wildlife Service (FWS) could forbid a California developer from constructing a San Diego housing development the way it had planned.

The FWS had found that if the development proceeded as planned, it might make extinct an endangered species -- the arroyo Southwestern toad.

The FWS did not want to forbid the 52-acre housing development itself. It wanted to compel the developer to use fill dirt that came from off-site, not from the area on the developer's property where the frogs lived, or from the adjoining streambed that marked the edge of the property.

Using offsite fill dirt would have been more expensive and inconvenient for the developer, who brought suit. The developer argued that the federal agency's restriction, which had been mandated pursuant to the federal Endangered Species Act, violated the U.S. Constitution's commerce clause and intruded into the proper regulatory role of the state.

The commerce clause sets out one of Congress' enumerated powers -- the power to regulate interstate commerce.

Binding circuit precedent

The three-judge panel's decision was unanimous -- not surprising because of a D.C. circuit precedent that was directly on point and because such a panel can't overrule circuit precedent.

The precedent was the 1997 D.C. circuit decision in National Association of Home Builders v. Babbitt. There, the court upheld -- despite a Commerce Clause challenge -- the FWS' determination that construction of a California hospital could not proceed, because it would harm another endangered species, the Delhi Sands flower-loving fly.

The NAHB decision was directly parallel to Rancho Viejo. Both involved California construction that was affected by a FWS order meant to protect an endangered species. In both cases, the developer said the Endangered Species Act, as applied, went beyond Congress' constitutional power to regulate interstate commerce.

Both cases also involved creatures that never travel beyond California's borders.

Considering two high court rulings

Ordinarily, that would have been the end of the matter. But complicating things were two recent Supreme Court decisions that arguably showed the court was interpreting the commerce clause power more narrowly than it once had.

The decisions were United States v. Lopez in 1995, and United States v. Morrison in 2000.

In each case, the majority included the Supreme Court's most conservative justices. The results, too, were conservative. Lopez struck down the Gun-Free School Zones act of 1990, and Morrison struck down a federal civil remedy for the victims of gender-motivated violence.

The laws that Lopez and Morrison indicated were beyond Congress' commerce clause power to pass are of a type generally opposed by conservatives.

Supreme Court precedent trumps circuit precedent if there is a conflict between the two.

So the panel in Rancho Viejo could not just cite the circuit precedent of NAHB and stop there. It had to examine if Lopez and Morrison meant it should disregard NAHB.

Because Lopez had preceded NAHB, the circuit had already decided that Lopez and NAHB did not conflict. But when Lopez was combined with the newer precedent of Morrison, did a conflict arise?

The panel unanimously thought not. It held, instead, that all three precedents could co-exist. But Roberts thought there was a conflict.

Learning from Roberts' dissent

Roberts pointed out that Lopez and Morrison suggest that commerce clause analysis must focus on whether the regulated activity affects interstate commerce. And he identified the regulated activity here, as the "take" of the flies in NAHB, or the toads in Rancho Viejo.

("Take" here is an environmental law term. There is a taking of a species of toad, for instance, when, a developer's activity threatens the toad's life or destroys its habitat.)

The panel, however, thought the regulated activity here was not just the literal "take" -- the specific aspect of the construction that hurt the frogs or flies, or their habitat. It thought the regulated activity was the "take" seen in context as part of a larger construction project.

The question of whether interstate commerce was involved in the take, the panel thought, ought to take into account not only the narrow question of whether interfering with a frog's habitat is connected to interstate commerce, but also the broader question of whether doing so in order to build a real estate complex is connected to interstate commerce.

Roberts, however, thought that the Supreme Court's decisions in Lopez and Morrison indicated that it would not want the "take" to be seen in context, but viewed in isolation.

So if planting a fence post in the ground kills a toad or destroys its habitat, then the only relevant activity in Roberts' eyes is fence post-planting -- no matter the reason for it.

From a commerce clause point of view, Roberts, in theory, could see a real estate development's frog-ousting as essentially the same as the frog-ousting performed by, say, a group of trespassing local kids building a fort.

Roberts' commerce clause view isn't just narrow; it's virtually microscopic. In Roberts' own words, this case was about simply "the taking of a hapless toad" -- not about a developer's project clashing with the survival of an endangered species.

But of course, this clash was plainly the context of the toad "taking" -- and no one could have missed that: neither the developer, nor California environmentalists. Ignoring this clash can only be the result of willful blindness -- or the worst kind of lawyerly technicality.

Microscope-level view

Let's hope the Supreme Court didn't mean to take Roberts' ridiculously literal view of what counts as a "regulated activity" in Lopez and Morrison. Certainly, the decisions' language does not suggest it. And the subject matter in those cases was much further removed from interstate commerce than real estate development is.

The regulated activity in Lopez was carrying guns in schools; in Morrison, it was violence against women. While all states have thriving, legal markets for the activity of commercial real estate developing, one hopes that few have thriving black markets for entrepreneurs specializing in woman-maiming or school-gun-supply.

One can see why the court might find it a stretch to find a connection between interstate commerce and policing local schools, or protecting women from angry local men bent on violence. But finding a connection between interstate commerce and local real estate development is much simpler.

Local real estate development may use out-of-state labor or supplies and advertise out of state. The real estate market in one state virtually always affects the market in adjoining states; state borders rarely mark terrain and climate change. Meanwhile, a given property may be sold to out-of-state buyers -- even permanent out-of-state residents who seek vacation homes.

Except as it is influenced by local and state laws, the real estate market's commerce no more necessarily follows state lines than do the winds. The doings of a real estate company -- including any "takes" of toads -- are logically connected to interstate commerce.

Activist and context-free

Roberts' context-free view of this issue isn't just ridiculously narrow, it's also disturbingly activist.

In his controversial dissent, Roberts isn't just innocuously counseling that the D.C. circuit follow the binding higher-court precedents of Lopez and Morrison, as his opinion suggests. He's counseling that the court go far beyond Lopez and Morrison to forbid any commerce clause goal that isn't itself a commercial purpose.

So when businesses tromp on other businesses, Congress can step in and regulate the activity. But when they tromp on toads, in Roberts' view, Congress can't step in -- even though it's the businesses who are acting. In Roberts' view, the "regulated activity" -- the tromping itself -- is not a form of commerce, and that's all that counts.

So unless the toads start an Internet mail-order business of "Don't Tromp on Me" T-shirts, with which the tromping would interfere, they're out of luck.

This view isn't just conservative; it's completely crazy. It utterly de-fangs the Endangered Species Act when it comes to local construction projects affecting species that live only locally -- and, probably, even those species that do not.

Endangered toads should not have to become carpetbaggers to be allowed to live in an intact habitat, as Congress wanted them to do.

Even endangered species that do move interstate may not create a commerce link in Roberts' world. Members of endangered species cannot legally be trapped and sold. So by logical extension of Roberts' view, they may be outside interstate commerce. Even if they move from state to state, money is not legally moving with them.

The "take" provision of the federal Endangered Species Act would thus, by the logic of Roberts' view, be a dead letter. Species would, if his view prevailed, have to be protected by individual states.

But an American species native to, say, Alaska is not just part of Alaskans' birthright; it's part of the birthright of all Americans. Protecting that species, even if intrastate -- like protecting intrastate national parks -- is properly Congress' job.

Marginal among GOP-appointed peers?

A total of eight different, eminent D.C. circuit judges over the years have made clear that they did not think the logic of the Supreme Court's decisions required them to take Roberts' narrow view.

Notably among them were three Republican appointees -- including Douglas Ginsburg, an unsuccessful Reagan Supreme Court nominee.

Roberts is even more conservative, then, than three of his four Republican-appointee colleagues. And the D.C. circuit's Republican appointees are known for being quite conservative, so this is no small feat.

That fact -- along with the logic of this controversial dissent -- provide strong reasons to oppose this nominee. One need not be a liberal to support the preservation of America's precious fauna. After all, three of Roberts' conservative colleagues did just that. Why didn't he?

Julie Hilden, a FindLawexternal link columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. Hilden's Web site,, includes MP3 and text downloads of the novel's first chapter.

Story Tools
Subscribe to Time for $1.99 cover
Top Stories
Get up-to-the minute news from CNN gives you the latest stories and video from the around the world, with in-depth coverage of U.S. news, politics, entertainment, health, crime, tech and more.
Top Stories
Get up-to-the minute news from CNN gives you the latest stories and video from the around the world, with in-depth coverage of U.S. news, politics, entertainment, health, crime, tech and more.

© 2007 Cable News Network.
A Time Warner Company. All Rights Reserved.
Terms under which this service is provided to you.
Read our privacy guidelines. Contact us. Site Map.
Offsite Icon External sites open in new window; not endorsed by
Pipeline Icon Pay service with live and archived video. Learn more
Radio News Icon Download audio news  |  RSS Feed Add RSS headlines