John Roberts with President Bush, July 2005 (White House photo by Eric Draper)

We’ve asked law professor Jonathan Turley to help us better understand those issues and what—if anything—we learned about Judge Roberts on the environment. Mr Turley is the Shapiro Professor of Public Interest Law at George Washington University and joins us from his office in Washington, DC.

Professor Turley, welcome to Living on Earth.

TURLEY: Thanks. Good to be back.

CURWOOD: You know, it didn’t take long for Senators to get to the environment in this hearing. The ranking Senate Democrat on Judiciary, Pat Leahy of Vermont, had a question in his very first round with Judge Roberts concerning something called “standing” and whether ordinary citizens should be able to bring environmental lawsuits. Why do you think that Senator Leahy put such importance on this issue? And what is standing anyway?

TURLEY: Well, Senator Leahy asked the right question because many citizens don’t understand that no matter how good your laws may be, no matter how pro-environment and protective they may be, they mean nothing unless people can actually get into court and bring lawsuits under those laws. That’s a question of standing. A citizen has to show that she has a right to bring a case before a court. That requires a showing of some injury and this notion of legal standing to qualify her, essentially, as a bona fide litigant.

In the last twenty years, the federal courts and Congress, to some extent, has been narrowing the principle of standing. Chief Justice Rehnquist has been particularly aggressive in narrowing the definition of standing and, thereby, reducing the access to the courts of some citizen groups and individual citizens.

CURWOOD: And, of course, the environment is an issue where almost anyone can claim they might be affected by something. I mean, if air is being polluted somewhere, anyone could breathe that air and they might be justifiably concerned about it.

TURLEY: That’s right. And we went through a period where citizens were given a much more liberal treatment in bringing cases. And there was, in fact, a very significant case called Sierra Club v. Morton where the court actually debated whether trees and animals have standing; whether you can bring a lawsuit essentially on behalf of a forest. But those times are long gone. One of the principle things that the Rehnquist court worked on so ardently was to reduce standing and reduce access to the courts. John Roberts appears to be cut from that same cloth as Chief Justice Rehnquist.

CURWOOD: So, what can we look at in the courts now? I would think that also Supreme Court Justice Antonin Scalia is pretty sensitive to this idea, as well.

TURLEY: Yes, indeed. Scalia has been one of the great advocates in reducing standing, reducing access to the courts. I personally believe that John Roberts is very much like Scalia and Rehnquist in their views.

CURWOOD: Now, there’s an article that Judge Roberts wrote for the Duke University Law Journal defending this perspective. And I’d like to play some tape of how Senator Leahy took Judge Roberts to task on that.

[HEARING TAPE:]

LEAHY: So I ask you this: If peoples, if their president or their governor fails to enforce these laws, why shouldn't individuals have access to courts where polluting companies could be made to pay for their wrongdoing? What can you do to assure us that they as individuals won't find under a Chief Justice Roberts, find the courthouse door slammed shut in their face?

ROBERTS: Well, one thing I would tell them to do is read the rest of the Duke Law Journal article. Because one thing, one point it makes is that environmental interests, it goes on to say, aesthetic interests, those are all protected under the law, and that one reason courts should insist that those who bring suit have standing -- that's the issue, that are actually injured – is because standing can encompass, certainly, environmental harms. The issue that was being addressed in the Duke Law Journal article was whether anyone could bring a lawsuit just because they're interested in the issue, or whether the plaintiffs had to show that they had been injured. The question is whether somebody halfway across the country who's not injured by that act should be able to bring suit.

CURWOOD: So, what do you think the answer to that question might be from Judge Roberts if he were here and with us and willing to answer directly?

TURLEY: [LAUGHS] Well, the directly point is the difficult one. I think, frankly, that answer was colossal spin. I have read the 1993 Law Review article and what comes out of there, in my view, is a very strident voice in terms of reducing access to the courts and reducing standing. At one point, he says that we can’t allow federal courts to be occupied by lawsuits, and this is a quote “at the behest of any John Q. Public who happens to be interested.” Well, that reflects the same view of Scalia and Rehnquist that simply bringing forth a legitimate case involving a violation in the environment is not enough. You have to show what’s sometimes called “user standing” that you are personally injured to bring the suit. Well, some of these lawsuits, particularly the extra-territorial suits—the ones occurring outside the country—make that very, very difficult

CURWOOD: So, if a wetlands advocacy group from, say, Massachusetts looked at the situation in southern Louisiana and said the destruction of the wetlands there is really endangering the people of New Orleans, and activities, certain government activities should stop, they wouldn’t be able to bring such a lawsuit.

TURLEY: That’s right. Or if you have people who want to stop the loss of an endangered species, or the destruction of a forest, they need to show something other than the mere fact that the statute’s being violated.

Now, all courts agree that you have to have some limitations on standing. There was a time when we debated the concept of “universal standings”—simply allowing people to come in and sue whenever they see these violations. That view was rejected. But what John Roberts has advocated in the past is a much more stringent test, one that requires such an injury that it excludes the vast majority of citizens who are inclined to sue in a given case.

CURWOOD: All right now, let’s look at his judicial record. He’s only been on the bench now for a couple of years in the federal appeals courts. There’s not a lot of court opinion upon which to judge the judge here. There is one big environmental opinion that he has. That involves an endangered species case. Officially, it’s the Rancho Viejo case but because of Roberts’ own colorful opinion it’s known as “the hapless toad” case. What’s that about, Professor Turley?

TURLEY: [LAUGHS] Well, Judge Roberts referred to this protected species as “the hapless toad” that unfortunately lives its life in California and does not cross state lines. And the reason it’s “hapless” is it would have been better if it travelled a little more. If it got over state lines, it would clearly trigger interstate commerce, one of the grounds with which Congress can regulate and protect thing like the hapless toad.

CURWOOD: Now, maybe because this was a California case, California Democratic Senator Diane Feinstein asked Judge Roberts about it. Let’s listen to a bit of that exchange:

[TAPE FROM HEARING]

ROBERTS: I did not take the position that it was outside the scope of the commerce clause. It was a question of which ground under the commerce clause we ought to look at.

FEINSTEIN: There's a great deal of concern as to what this then means for the implication for all environmental law--the Clean Water Act, the Clean Air Act. But if I understand you correctly, what you’re saying is that you do not believe that the commerce clause should prohibit legislation in this area. Is that correct?

ROBERTS: I have not had occasion to decide that. I did not decide it in the Rancho Viejo case. One of the other judges did, and I did not join that opinion. What I said is: we should consider these other grounds. Those other grounds were what other courts had used to sustain application of the Endangered Species Act in the cases that came before them. They analyzed the protection of the endangered species as implicating a commercial activity. And that allowed them to sustain the act without regard to whether it had an interstate effect itself.

CURWOOD: So, we didn’t still get quite a full view of what’s in Judge Roberts’ hand on this issue, did we, hmm?

TURLEY: [LAUGHS] No. It’s moments like this that you really miss Bob Bork. I mean he would’ve just basically said “I feel free to wear a necklace of hapless toads into this room. I am not going to accept the commerce clause protects it.”

In the decision, John Roberts sounds much more strident than he appeared in that committee room. He said in that opinion that he chastised the panel’s approach because it suggested, and here’s the quote: “the taking of a hapless toad that for reasons of its own lives its entire life in California constitutes regulating commerce.” Well, the clear message there was that he didn’t agree with that position. Now, he might have found, as he suggested in the hearing, other grounds to support the federal regulation. Well, what seems abundantly clear from that statement, and from his earlier writings, is that he does not believe that the commerce clause authority of Congress is a likely basis to protect endangered species or, presumably, other environmental regulations.

CURWOOD: And just to remind people that Robert Bork, of course, was famously rejected as a Supreme Court nominee after being fairly explicit about his conservative views in front of the Congress that was holding hearings. And other Supreme Court Justices since that time have also been fairly explicit about their views. This time around, it seems like there are not a lot of questions being answered clearly.

TURLEY: Yeah, I’m not too sure what is going on. We can all disagree with what the framers intended these meetings to be but I can’t believe that this is what they intended it to be. There has been zero information, in my view, exchanged during these hearings. They’ve been a virtual cure to insomnia. But, you know, what’s strange is that the Democratic Senators while complaining, they don’t seem to be organized in a serious opposition.

You know, John Roberts’ views are not unlike Bob Bork’s! And many of these Senators laid down in front of Bob Bork and said “over my dead body will you make it to the Supreme Court.” Well, if you shave off the beard and give a few Botox injections, you have John Roberts on issues like commerce clause and affirmative action. So, what I find really striking is not just that the Roberts’ model is gonna gut future confirmation hearings in terms of their substance. But also it shows how purely visual American politics really have become.

CURWOOD: Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Thanks for your time.

TURLEY: It’s my great pleasure.