John Roberts on Hapless Toads and Hapless Workers

I've already written a bit on Supreme Court nominee John Roberts. I don't have too much conclusive to say about him with respect to workers' rights at this point, but I do have some observations, so I'll get them all over with in this post.

1. Clearly Roberts has wanted to be on the Supreme Court for as long as Bill Clinton wanted to be President. It seems that every career move, every political statement, ever opinion, was written with an eye to building enough conservative Republican support to be credible to all factions of the party, without being so far out there as to create a religious war with the Democrats when he was nominated.
   
   
2. The Right-wing clearly has high hopes for Roberts, although I'm not quite sure that they have any better tea leaves to read from than we do. This chilling column by Larry Kudlow in the conservative journal Human Events illustrates what I'm talking about. Kudlow first quotes Frank Keating, President of the American Council of Life Insurers, who sits on the pro-Roberts business coalition.

   Keating, who is also the former Oklahoma governor and federal prosecutor, told me Roberts believes that "the engine of commerce comes from individual creativity" and that Roberts "is likely to encourage enterprise through the creativity and genius of individual men and women to produce the next generation of jobs and growth."
   
   This is a far cry from the Supreme Court of the past 70 years. As Mark Levin writes in his best-selling book "Men in Black," the Court has so expanded the commerce clause that it has helped create a huge regulatory state where activist judges have seized private property, taken over school systems and prisons, interceded in private-sector hiring and firing practices, ordered farm quotas and property-tax increases, and expelled God, prayer and the Ten Commandments from the public square. Levin calls this "socialism from the bench." However, rather than the regulatory state, Roberts is likely to choose private property and the economic-freedom right of individuals.
   
   Roberts' nomination also signals a bad hair day for trial lawyers and their excessive damage claims that have so crippled business and destroyed tens of thousands of jobs. In particular, Roberts is expected to support recent congressional legislation that would move class-action lawsuits from county and state courts to the federal bench. Experts anticipate an aggressive effort by the trial lawyers to gradually snipe at the Class Action Fairness Act, but Roberts is expected to uphold the congressional law.
   
   Roberts is a genuine free-market judge, someone who will not assume that business is always guilty until proven innocent. He should land on the side of limiting damages for personal injury and product liability settlements, which hopefully will include asbestos, medical malpractice and phony securities lawsuits. He may also be sympathetic to corporate patent-holders of intellectual property, while seeking to oppose local regulators in areas of telecom access, energy development and production, and streamlined power utilities.

   
   
3. Whatever his ideology may be (if he has one), it's clear that almost all of his "real life" experience is in the business world. Although Bush took great pleasure in mentioning that Roberts worked at a steel mill during high school summers, the fact is that he didn't exactly owe his soul to the company store; his father was a manager:

   It was a cloistered childhood, but John did get a brush with the outside world during the summer, cleaning up hazardous materials and emptying grease wells in his father's mill. When he introduced Roberts, Bush implied that the job reflected working-class roots, but it was really a perk for the sons of Bethlehem executives, paying an enviable $12 to $16 an hour. And there was never any real possibility that Roberts would follow his father into the factory for good. He was heading to Harvard.

   This is the best thing about Roberts to his business supporters, according to The Wall St. Journal:

   His real-life experience with the business world excites some corporate chieftains who privately gripe that most current justices are too insulated to appreciate the impact of some rulings and federal regulations.

   Business Week makes the same point:

   "The justices who have this kind of background are few and far between," says Mark Levy, an appellate lawyer at Kilpatrick Stockton LLP and a Democrat. "John brings firsthand personal experience and will understand [companies'] legitimate concerns and practical problems. He broadens the experience base of the court."
   
   That experience could help determine the range of cases the court takes on. Today's Supremes tend to shy away from business issues unless they're confronted with clear conflicts among courts of appeals in the 11 circuits. That frustrates business, which often finds itself bound by default by a bad ruling in a single circuit. "If the Ninth Circuit comes up with a questionable rule, it's hard to tell business to comply only" in the West, says Levy. "John will be able to shed light why these business concerns are legitimate and important" for the court to consider.




4. He has delivered or signed onto several opinions that directly or indirectly touch on the area of workers' rights in general, and the power of government to regulate working conditions, the environment and such.
   
   One of the cases I'll talk about is Toyota v. Williams. Mary Johnson of Ragged Edge, lays out the basic story for us:

   Not long after Ella Williams took a job at the Toyota plant in Georgetown, Kentucky, moving her family all the way across the state because she was so happy to have landed a job alongside other assembly line workers whose average annual pay was $62,000, she "got lumps the size of a hen's egg in my wrists, and my hands and fingers got curled up like animal claws." Repetitive-stress injuries -- RSI -- accounted for more than a third of the 1.7 million workplace injuries reported in 1999, according to the Bureau of Labor Statistics, and Williams was one of those statistics. "I used pneumatic tools that really vibrated, and I was always having to reach above my head," she explained. She pressed Toyota for accommodation. She got some; but later she was put back on another assembly-line job that hurt her wrists again. After a number of legal skirmishes, Toyota eventually dismissed her. "When you get RSI, they show you the door," she said.

   Johnson argues that it was Roberts who convinced O'Connor (and the rest of the court) to take the position she did on Toyota. Roberts argued (and O'Connor agreed) that because the ADA stated that a disability was required to restrict a person's ability to perform tasks "central to daily living," Williams' carpal tunnel syndrome didn't apply because it was "only a problem at work."
   
   In Roberts' view, work is obviously not central to daily living. After all, he said, "She can brush her teeth, wash, bathe, do laundry and cook breakfast," Roberts said to the Justices. "She can take care of personal chores around the house."
   
   In other words, who needs work if you can brush your teeth?
   
   O'Connor's opinion mirrored Roberts' argument, stating that Johnson's "impairments did not substantially limit any of her major life activities" because

   household chores, bathing, and brushing one’s teeth are among the types of manual tasks of central importance to people’s daily lives, and should have been part of the assessment of whether respondent was substantially limited in performing manual tasks.

The National Coalition for Disability Rights thinks that Roberts’ arguments “distorted the facts of the case and minimized the extent of Ella Williams disability,” making it now more difficult for the disabled to prove violations of the Americans With Disabilities Act in the courts.

Much as been made of how the Democrats are being hypocritical because Roberts and O'Connor agreed on most business-related issues, so the Dems can't go right from their love-fest with O'Connor to throwing the rope over the tree for Roberts. First, despite the pre-mature canonization of Sandra Day O'Connor by Democrats, don't forget that she was no friend of workers' rights. And, as the Toyota story shows, in at least in one important case, it was Roberts who showed O'Connor the way.

The second case that's relevant to comment on is Rancho Viejo, LLC v. Norton, a case that has been much discussed in the press because it not only touches on the controversial Endangered Species Act, but also may shed some light on Roberts' view of the Constitutions "commerce clause" which gives the federal government the right to regulate interstate commerce. As I've written before, there is a movement within the judiciary called the Constitution in Exile that wants to repeal the reforms of the New Deal (minimum wage, the Securities and Exchange Commission) as well as more recent environmental, consumer and workplace safety laws based on a very limited reading of the constitution. Everyone -- right and left -- are reading tea leaves to determine if Roberts sympathizes with the exiled ones.

The case dealt with a Fish & Wildlife Service order to a developer to move a fence from its own property in order to accommodate an endangered toad. The lower court agreed with the Service, as did Roberts' Circuit Court, although Roberts dissented.

"The hapless toad," he wrote, "for reasons of its own, lives its entire life in California" and thus could not affect interstate commerce. Roberts cited the commerce clause in arguing that federal environmental laws do not protect a rare species of toads because the animals live only in California and do not cross state lines.

Now I'm no attorney, but this does raise a few questions for me. For example, what does this mean for the hapless worker in Tennessee? If he works for a national company, but for reasons of his own, never jumps into the truck to travel to Kentucky, is he covered by OSHA? What if the company can prove that it only does business in the immediate vicinity and buys all of its raw products locally. No interstate commerce, no OSHA? Will each state have to write its own OSHA law (with accompanying regulations), its own toxic substances law (with accompanying chemical standards), its own Endangered Species act, etc, etc? This would obviously be a disaster.


5. The Democrats and groups opposing Roberts have caught on to the idea that this battle may be less about abortion rights and more about which side Roberts is on -- business or the people:
   
   According to Ron Brownstein in the LA Times, Opponents are

   trying to assemble a broader argument against Roberts because they wanted to show that tilting the court right would directly affect millions of Americans beyond those deeply concerned about abortion and other social issues.
   
   One senior Senate Democratic aide maintained that although Bush survived Gore's populist criticism in 2000, such arguments might prove more potent now because polls showed the president's record had deepened suspicions that he favored business interests and the wealthy over average families.

Finally, just a little sidenote. The LA Times notes that :

Senior White House strategists and the independent campaigns backing Roberts predict such [populist] arguments will not seriously threaten his confirmation, in part because they maintain his record is too complex to support the portrayal. They also believe Bush's two presidential victories, especially his win over Gore, have shown the limits of a class-based populist message.

Question: Have these guys actually made themselves believe that Bush beat Gore in 2000? I mean, even if one accepts the validity of the Supreme Court giving the presidency to Bush, even if one accepts the overwhelming "Jews for Buchanan" vote that allegedly put Bush over the top in Florida, etc., etc., Bush still lost the popular vote by half a million votes.

But I digress.

The bottom line is: Who knows what we'll be writing about this guy in ten or twenty years? More than one liberal commentator has concluded that Roberts may not turn out to be too bad, or at least as bad as we might have gotten. Nathan Newman, for example, points out that "an alternative reading of his decision is that he just didn't like the reasoning of the original panel" and that he might have ruled the other way had the reasoning been better. Others point out that there have been occasional (generally less significant) cases where he has argued in favor of labor rights or environmental protections.

And as I said at the beginning, although they trust their President to do the right (in more ways than one) thing I'm not too sure the Republicans know a whole lot more about this guy than we do. Even the Neanderthals at Human Events admit that "Conservatives are taking a leap of faith in supporting this nomination."

So, is Roberts truly the most moderate candidate we could expect from this administration, given that Bush was unlikely to appoint Mario Cuomo to the Supreme Court? Can the Democrats use the hearings to educate the American public about the pro-business, anti-worker, anti-environment leanings of this administration? Did the Dems actually succeed in intimidating them with filibuster threats and prospects of a "holy war" only a few months after they over-reached on Terry Schiavo and Tom DeLay's threats to the judiciary? Or is Roberts the reverse of David Souter -- seemingly moderate on the outside, but raging right-wing lunatic waiting to emerge?

Good questions. I don't have a clue. But here's my prediction: barring some terrible skeleton in a dark, dank, dismal, smelly, hidden closet that no one has yet discovered, John Roberts will be out next Supreme Court Associate Justice -- and the vote won't be terribly close. Let's knock on wood, hope for the best and keep our powder dry until Rehnquist retires. We may still have our holy war.

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