Monday, September 12, 2005

Roberts and federalism

Randy Barnett sounds worried:
Sometime this fall, two of the five votes that made up the Lopez and Morrison majorities will have been replaced. Only Justice Clarence Thomas will be left from the three Raich dissenters. As the new chief justice (assuming he is confirmed), will John Roberts assume the role of his mentor William Rehnquist--for whom he clerked--and lead the Roberts court to enforce the Constitution's original plan of limited federal power? Will President Bush now look for a nominee to replace Justice O'Connor who is as committed to the New Federalism as she was? Given that so many of the New Federalism cases were 5-4, if either of the new justices adopts the mantra of "judicial deference" to congressional power, then Chief Justice Rehnquist's death, along with Justice O'Connor's retirement, may presage the second death of federalism. A judicial withdrawal from enforcing the original limits on the powers of Congress would undo the New Federalist legacy of William Rehnquist.
This article by Jeffrey Rosen leaves me somewhat uneasy myself:
When I interviewed Roberts in 2002, he made it clear that he thought the Court should rarely strike down regulations under the Commerce Clause. "Do I think it's a good thing that at least once every 30 years, the Supreme Court says something that motivates Congress to focus a little more closely on why it's regulating in a particular area? Yes, I do think that's good," he told me. But he went on to emphasize, "There has to be a lot of legal room in the joints, and the Supreme Court has to remind itself on a daily basis that it occupies tenuous ground.''
Roberts' opening statement was too minimalist for me to learn anything new from it. See also Jacob Sullum's thoughts.

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