Bench Memos

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The NYT’s Distortion


Regarding the New York Times less-favorable-to-Roberts editorial: It adds calumnies to its errors. For instance, after suggesting that Bush’s judicial nominees threaten to hold laws against air pollution, unsafe working conditions, and child labor unconstitutional, the Times writes: “He dissented in an Endangered Species Act case in a way that suggested he might hold an array of environmental laws, and other important federal protections, to be unconstitutional.” This is simply a gross misrepresentation of the Roberts opinion in the Rancho Viejocase. Judge Sentelle (for whom I clerked years earlier) argued that the ESA could not be applied to an intrastate species lacking in commerical value. Judge Roberts, on the other hand, pointed out that the D.C. Circuit’s jurisprudence on the matter was incoherent and in direct conflict with the rationales adopted by the other circuits in addressing the issue. Judge Roberts made explicit that cleaning up this doctrinal confusion was his reason for urging en banc review of the case. Yet even if Roberts had echoed the Sentelle view (and he did not), this would have little, if any, imapct on the bulk of federal regulations, particularly those addressing air pollution and the like.

For those interested (or who, perhaps, need a sleep aid), I have a 98-page article in the Iowa Law Review dissecting the potential impact of aggressive federalism arguments on environmental laws. (Note: The most relevant portion is from page 403-417.) Even were the ESA to be limited, the various pollution laws — nearly all of which directly regulate economic activity as such — would not be touched. The Times here is attacking a mythical bogeyman that has no relation to the judicial opinions of Judge Roberts nor to the judicial doctrines some conservatives actually advocate.


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