Bench Memos

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Kudos to the Times


Have to give credit where credit is due, even when it is due to the Old Grey Lady. Here we are, on the cusp of the Big Constitutional Showdown (a/k/a the Roberts’ Hearings), and the New York Times runs a tongue-in-cheek editorial against Roberts. Or, should I say, “toad-in-cheek”?

Cheeky editorialist Adam Cohen peers into the face of the arroyo Southwestern toad, and sees the future of our country. John Roberts, we are told, does not really care what happens to this “hapless” creature, a tiny thing which does not like the road at all. At least according to a case about the Endangered Species Act that Judge Roberts handled. The arroyo toad spends its whole life in California. Though Roberts did not understand why this is so, he thought it was a big deal. The toad’s sedentary habits put it beyond the reach of Congress’s power over “interstate commerce”. And so, maybe Congress cannot protect our little friend form the nasty developers who want to kill it.

All this makes Roberts “very dangerous”. Roberts holds (get ready!) “extreme states rights views”. Lest you scratch your head wondering, Cohen explains: these are the views that kept Dred Scott in slavery and, you know, led to the Civil War, in which many toads, and some people, lost their lives.

Turns out that Roberts is one of those “conservative judicial activists” — the “most dangerous kind”. They’re the kind that specialize in taking rights away, unless you are lucky enough to be a state. The good activist is the “liberal” kind, for they specialize in “creating” rights like the right to privacy. This makes them very, very safe, unless you are unlucky enough to be an unborn child.

But, if you are an arroyo Southwestern toad: kick back, order another Margarita, check out the chicks. Life is good. You are safe.

Jonathan Adler is worried about this “disingenuius editorial.” Chill, Jonathan. It’s no more disingenuous than Younfg Frankenstein, though not quite as funny. Order up another gin and tonic. It’s late August, and the NY Times is having some fun.


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