Four weeks after the U.S. Supreme Court upheld an expansive view of eminent domain by a 5-4 vote, President Bush went on national television to nominate D.C. Circuit Court Judge John G. Roberts Jr. to replace retiring justice Sandra Day O’Connor. O’Connor was in the minority on the eminent domain case, but she has been a key swing vote on many property rights cases. If Roberts is confirmed, will he move the court in a more conservative direction? Or will he maintain the moderate course of O’Connor?
The question is an especially important one for the planning and development world. Even though most of the current Supreme Court justices were appointed by Republicans, government agencies have done well in most recent cases related to land use and property rights. The 5-4 ruling in Kelo v. City of New London supporting the use of eminent domain for private development is only the most recent example.
Roberts has spent most of his career as a respected Supreme Court litigator and has a thin record after only two years on the bench. This, of course, is part of the Bush strategy – select a guy everybody in Washington knows and everybody respects, yet doesn’t have much of a record. So his critics are looking at his combined record as a judge and as a litigator. Litigators, of course, are hired guns – they try to win their clients’ cases – so it is difficult to know to what extent Roberts’ litigation career represents his personal views.
The Roberts record is patchy, but the environment and property rights arena provides as much of a clue as anything else. Here are three important cases he was involved in:
• In Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003), an endangered species case, Roberts dissented from a D.C. Circuit Court decision not to re-hear the property owner’s arguments. This is his only significant property-related case as a judge.
• As deputy solicitor general to Kenneth Starr in the administration of George H.W. Bush, he argued Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (see CP&DR Court Cases, July 1992) before the Supreme Court, and won a ruling in favor of mining on public lands.
• Most perplexingly, as a lawyer in private practice he represented the Tahoe Regional Planning Agency before the Supreme Court in Tahoe-Sierra Preservation Council v. TRPA, 535 U.S. 302 (see CP&DR Legal Digest, April 2002). He argued that a three-year moratorium on development in the Tahoe Basin during the 1980s was not a taking – and he won the case.
There is no doubt that Roberts is a conservative. He worked in the Reagan White House and in the Solicitor General’s office under Starr. He was nominated to the D.C. Circuit by both Bushes. (The senior Bush left office in 1993 before Roberts’ confirmation hearings were scheduled.) And in private practice he has represented business interests and corporations on a regular basis.
The question, of course, is how conservative. In this regard, his dissent in the Rancho Viejo case and his defense of government property regulation may provide useful – if sometimes conflicting – insights.
In the Rancho Viejo dissent, Roberts disagreed with the D.C. Circuit’s ruling that the U.S. Fish & Wildlife Service’s regulation of private property in Southern California was permitted under the Commerce Clause of the Constitution. Echoing a Harvard Law Review article he wrote while in law school, he argued that federal regulation of a development project contained entirely within one state may not be a constitutional regulation of interstate commerce.
In a phrase that has been often repeated in the last few weeks as evidence of his dry sense of humor, Roberts referred to the regulated species as “a hapless toad that, for reasons of its own, lives its entire life in California.” Whether the phrase is wry or not, environmentalists may think such language does not show much respect for the toad or its habitat.
Then there is Roberts’ representation of TRPA in the Tahoe-Sierra case – a hard-fought case that went on for 20 years before it went to the Supreme Court. The State of California viewed the case as an extremely important one in maintaining the integrity of the strict regulatory system in the Tahoe Basin.
Then a partner at the D.C. firm of Hogan & Hartson, Roberts came into the Tahoe case only to litigate in front of the U.S. Supreme Court. In so doing, he partnered with longtime San Francisco environmental lawyer Clement Shute and, in the oral argument, went up against longtime Los Angeles property rights lawyer Michael Berger, the winner of the landmark First English case before the Supreme Court in 1987.
In the brief and at oral argument, Roberts focused mostly on the need to apply the three-prong legal test for a taking in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), the first major property-rights taking case decided by the high court. He also argued that the moratorium did not lead to a taking because the regulation was only temporary.
“[T]here is no dramatic effect on the economic value of the affected lots, because we’re talking about a temporary regulation for a limited time,” Roberts argued. He noted that most of the lots had been sold by the time the case came before the Supreme Court. This was a somewhat dangerous proposition before the Supreme Court, considering that Chief Justice Rehnquist had developed the concept of a “temporary taking” in the First English case.
He also found a weakness in Berger’s case by arguing that Berger should not have made a facial challenge. “The facial claim is the mere enactment of this temporary moratorium taking effect,” he said. “Well, then don’t talk to me about what happened 15 years later, if the mere enactment of the temporary moratorium is your complaint. That’s a different case.”
Roberts won the case 6-3, with Rehnquist and Justices Clarence Thomas and Antonin Scalia – the very justices that liberals fear Roberts will side with – writing a dissent disagreeing with his position.
In a bemused speech before the Federalist Society a year later, Berger noted the Washington Post had speculated that Roberts argued the case to help blunt anti-environmentalist criticism in case he was nominated for a federal judgeship again. There may be some truth to this. But Roberts’ role may also have something to do with his Hogan & Hartson partner Douglas P. Wheeler – who oversaw the Tahoe litigation for eight years as California’s Resources Secretary.
Roberts’ position in the Rancho Viejo and Tahoe-Sierra cases contain no internal inconsistencies. After all, one has to do with whether a federal law arguably dealing with interstate commerce can interfere with a private development in an individual state; the other has to do with whether a moratorium by a regulatory agency established by an act of Congress went on too long.
So here’s a guess: Roberts will push the Commerce Clause aspect of the Endangered Species Act – though he will not tip the scales. And on most other things, he’ll probably take things pretty much down the middle. The advantage to a stridently ideological president of picking a litigator is that you cannot tell what his record really is because he’s always representing his clients. The flip side is that a litigator knows how to make an argument on either side of an issue.