Jeffrey Rosen has an able and interesting discussion of the legal philosophy of Judge Roberts in The New Republic. It is largely positive, since Rosen views Roberts, hopefully, as one of the “good conservatives.” (See my discussion, here, citing others, of liberals, including Rosen, distinguishing conservatives of whom they approve from those they don’t.)
Rosen’s current piece is worth reading, but what struck me most about it was not his hopeful view of Roberts, interesting though that is, but rather some offhand comments that were, I think, unintentionally revealing about Rosen himself and the liberals who share his views. For example, Rosen writes:
In interviews, Roberts has suggested that he believes the Commerce Clause imposes at least some limits on congressional power–a position that is now conventional wisdom among conservatives
The implication here, and I think an accurate one, is that liberals reject this view, believing as they do that placing any limits on what Congress can do under the Commerce Clause would be, as Rosen wrote here, “to strike at the heart of the regulatory state.”
The following is also quite interesting in that regard:
… Roberts has suggested that, although he thinks the Court can legitimately strike down an occasional federal law as exceeding Congress’s commerce powers, he has no interest in joining the Constitution in Exile movement in a sustained assault on the regulatory state. In our [2002] interview, he left me with the impression that he thought it might be a good thing for the Court, at least once in 30 years, to strike down a federal law in a way that forced Congress to focus more closely on the reasons for its regulations, but that much more frequent invalidations would be inappropriate.
One hopes that the above is much more Rosen’s “impression” than Roberts’ view, since the idea that the Supreme Court should decide that some piece of legislation, passed by the Congress and signed by the president, is unconstitutional every now and then simply in order to send a message to the Congress “to focus more closely on the reasons for its regulations” is appalling.
It’s one thing to prefer a “minimalist,” theory-less, ideology-less Court but quite another to confuse its function with the Post Office.
Nitpicking, perhaps, but the Interstate Commerce Clause doesn’t limit Congressional power, it grants Congress power. Without it, Congress would have no more authority to regulate interstate commerce than to punish domestic violence or the posession of a gun near a school.
The issue is whether the clause applies to “interstate commerce”, or “commerce” (the current apparent standard), or “any action taken by or injurious to or witnessed by somebody who might at some point consider participating in interstate commerce.” Even under the first interpretation, though, it’s a grant of power.