Amar Misrepresents Roberts

by Jonathan H. Adler

In the NYT UC Hastings law prof Vikram David Amar misrepresents Judge John Roberts’s much-discussed dissent in the Rancho Viejo case by referring to Roberts’s “controversial opinion that Congress lacks the constitutional power to enact the Endangered Species Act.” As I’ve already noted, this is simply not so. Roberts called for rehearing en banc to resolve the intercircuit conflict, as well as “to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent.” He never said that “Congress lacks the constitutional power to enact” the ESA. I have the utmost respect for Professor Amar, so this error may have been inadvertent (perhaps even the result of the NYT’s editing process). It is a misrepresentation of Judge Roberts’s written opinion nonetheless.