The Raich Test

It comes as no surprise that the defining issue in the upcoming confirmation fight will be abortion. Both the Pro-Choice and Pro-Life movements have been girding up for this moment for years, and the difference between support and opposition to Judge Roberts will depend almost entirely on his stance on abortion, or at least his perceived stance.

But should it be this way? Is abortion really the most important issue the court, and if confirmed, Judge Roberts will deal with? It’s important for sure, and the fact that the issue has been put out of reach of the democratic process for thirty years is largely responsible for all of the public acrimony that exists today.

However to define abortion as the biggest issue facing the court would be a stretch, and there are much larger issues, of which abortion is a part, which should be, and in my view are, of greater concern.

Most pertinent are Judge Robert’s views on the larger issues of federalism, enumerated powers, and the court’s role in limiting the exercise of federal power. What, for instance, is Judge Roberts’ Commerce Clause jurisprudence? Does he believe that it serves as a rubber stamp for expansive and intrusive federal regulation, or does he believe it serves as a strict prohibition on such activity?

To be more specific, would he have ruled in Gonzales v. Raich that the Commerce Clause allows congress to regulate activities neither interstate nor commercial, as long as such activity could conceivably affect interstate commerce, as the court did, or would he have sided with Justices Thomas, O’Connor, and Rehnquist and ruled that such interpretation leaves no limit on federal power?

To ask such questions during Judge Robert’s hearing would be inappropriate, and he will almost certainly refrain from answering. So to ascertain the answers we must refer to the judge’s record on the court of appeals, as slim as it may be. His dissent in Rancho Viejo v. Norton suggests that his Commerce Clause jurisprudence, and his views on federalism, more closely fall in line with the three dissenting justices in Raich. In his opinion Judge Roberts opined that congress had no right to order, through the Fish and Wildlife Services, that a property owner remove a fence on his property so as not to inhibit the movement of an endangered species of toad that resided on that property. "The hapless toad," he wrote, "for reasons of it’s own, lives it’s entire life in California", and thus falls outside of congress’ regulatory powers under the Commerce Clause.

This indicates an important understanding of the limitations the Commerce Clause was intended to incur, an understanding that has also been lacking on the court for quite some time. Granted one dissent in one specific case is not much to go on, but it isn’t much of a stretch to assume that Judge Roberts will apply the same jurisprudence in future cases. If so, we can expect that his ascension to the court will bring about a federalist jurisprudence that will serve the court and the country well, and will at least help curb the tide of federalism’s court-subsidized demise.

Hat Tip: OpinionJournal