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I don't know if that's a flaw for a judicial nominee or not, not to have a comprehensive philosophy about constitutional interpretation, to be able to say, "I'm an originalist, I'm a textualist, I'm a literalist or this or that." I just don't feel comfortable with any of those particular labels. One reason is that as the Constitution uses the term "inferior court judge," I'll be bound to follow the Supreme Court precedent regardless of what type of constructionist I, personally, might be. The other thing is, in my review over the years and looking at Supreme Court constitutional decisions, I don't necessarily think that it's the best approach to have an all-encompassing philosophy. The Supreme Court certainly doesn't. There are some areas where they apply what you might think of as a strict construction; there are other areas where they don't. And I don't accept the proposition that a strict constructionist is necessarily hostile to civil rights.
Would he find any limits on the enumerated powers of Congress? We don't know.
Roberts, Circuit Judge, dissenting from denial of rehear- ing en banc: The panel's opinion in effect asks whether the challenged regulation substantially affects interstate com- merce, rather than whether the activity being regulated does so. Thus, the panel sustains the application of the Act in this case because Rancho Viejo's commercial development consti- tutes interstate commerce and the regulation impinges on that development, not because the incidental taking of arroyo toads can be said to be interstate commerce. See Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1071-73.
Such an approach seems inconsistent with the Supreme Court's holdings in United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000). The Court in those cases upheld facial Commerce Clause challenges to legislation prohibiting the possession of firearms in school zones and violence against women.....
The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating "Commerce ... among the several States."
[S]tarting with McCullough v. Maryland, Chief Justice Marshall gave a very broad and expansive reading to the powers of the Federal Government and explained that—and I don't remember the exact quote—but if the ends be legitimate, then any means chosen to achieve them are within the power of the Federal Government, and cases interpreting that, throughout the years, have come down. Certainly, by the time Lopez was decided, many of us had learned in law school that it was just sort of a formality to say that interstate commerce was affected and that cases weren't going to be thrown out that way. Lopez certainly breathed new life into the Commerce Clause. I think it remains to be seen, in subsequent decisions, how rigorous a showing, and in many cases, it is just a showing. It's not a question of an abstract fact, does this affect interstate commerce or not, but has this body, the Congress, demonstrated the impact on interstate commerce that drove them to legislate? That's a very important factor. It wasn't present in Lopez at all. I think the members of Congress had heard the same thing I had heard in law school, that this is an important—and they hadn't gone through the process of establishing a record in that case.
[S]imply because you have a problem that needs addressing, it's not necessarily the case that Federal legislation is the best way to address it...[T]he constitutional limitation doesn't turn on whether it's a good idea. There is not a ''good idea'' clause in the Constitution. It can be a bad idea, but certainly still satisfy the constitutional requirements.
Mr. ROBERTS. But I am happy to be scrutinized under whateverstandard the Committee or the Senate wishes to apply.