PFAW also attacks Judge Roberts’s dissent from the denial of rehearing en banc in Rancho Viejo v. Norton, which presented the question whether the Endangered Species Act could apply to (in Roberts’s witty phrasing) “the taking of a hapless toad that, for reasons of its own, lives its entire life in California.” Roberts pointed out how the panel’s opinion “seem[ed] inconsistent” with the Supreme Court’s Commerce Clause decisions in Lopez and Morrison. He explained that en banc review was appropriate because the panel’s approach conflicted with a Fifth Circuit opinion. He also pointed out that en banc review would “afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent.”
None of the above is evident from PFAW’s tendentious account. In claiming that Roberts’s dissent “strongly suggested that he thought it would be unconstitutional to apply the Endangered Species Act in this case,” PFAW completely ignores Roberts’s suggestion that alternative grounds might well be available. Rather than present, much less address, Roberts’s arguments, PFAW claims that Roberts’s opinion indicates that he would “severely limit the authority of Congress to protect environmental quality as well as the rights and interests of ordinary Americans.” Apart from the fact that most ordinary Americans, last I checked, are not arroyo toads, PFAW’s real dispute is with the Supreme Court’s decisions in Lopez and Morrison (opinions that O’Connor joined). PFAW cannot fairly fault a circuit judge for seeking to ensure that his circuit follows Supreme Court precedent, and PFAW would surely fault a circuit judge for failing to do so when PFAW favored the applicable precedent.