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The “Hapless Toad” Case and Stare Decisis

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Interesting column on the “hapless toad” case. As readers of this site know, I represented this landowner before the federal agencies and my colleage at Chapman Law School, Professor John Eastman argued the case before the D.C. Circuit. Judge Roberts’ dissent from the denial for rehearing cannot be loaded up with the significance that environmentalists are arguing for. Professor Epstein, as usual, has it exactly right:

It’s less clear just how far Roberts would go; his opinion, like most he has written, was cautiously worded.

“Although it’s somewhat troubling that Judge Roberts wrote this opinion, it is by no means conclusive evidence of a radical or extremist approach,” said Timothy Dowling, chief counsel of the pro-environmentalist Community Rights Council. “He’s simply saying we need to look at the issue more closely. ”

Richard Epstein, a University of Chicago law professor and a leading property rights theorist, said the case was being overblown.

Even if Roberts forms part of a Supreme Court majority to limit the Endangered Species Act and other environmental laws, Epstein said, that would mean only that “some fraction of (environmental regulation) would be left to the states.”

Democratic Senator after Democratic Senator keep extolling the virtue of stare decisis. They are talking about Roe and Casey, of course, but does the same honor flow to Morrison and Lopez, the Commerce Clause cases that warn lower courts to be aware that there are limits to the clause’s reach? If so, how can anyone critique the Roberts’ suggestion that the regulation of the toad by the federal government presented some unique issues that needed further study and amplification.

Every attack on Roberts’ opinion in this matter will tell us something of the speaker’s real view on stare decisis.


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