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Moments after President Bush nominated Judge John Roberts to the Supreme Court, lawyers, pundits and politicians were jabbering over what the nominee's past court opinions and other legal work indicated he might do on the nation's highest court.

The American Farm Bureau Federation (AFBF) was most interested in whether the nominee might bode well for its positions on protecting the rights of property owners, controlling government regulation and other issues that affect farmers' and ranchers' profitability.

Roberts was appointed to the U.S. Court of Appeals just a little over two years ago. He has issued only 40 opinions. However, there have been clues as to how he might rule as a Supreme Court Justice.

For example, Roberts' supporters and critics both point to his dissenting opinion in a case concerning the Endangered Species Act (ESA) and the Commerce Clause of the Constitution. In that case, the appeals court ruled that the Commerce Clause allowed an ESA regulation preventing a developer from building a fence on land in California occupied by the endangered southwestern arroyo toad. In dissenting from the majority's refusal to rehear the case, Roberts wrote that the taking of the "hapless toad that, for reasons of its own, lives its entire life in California" could not be regulated under the Commerce Clause, which was intended to regulate only interstate commerce.

"Judge Roberts' opinion in this case does not mean that he is anti-species or anti-environment, as some critics have said," said Julie Anna Potts, AFBF general counsel. "We believe all it means is that he will try to uphold the Constitution, which is something that usually works in favor of property rights and against excessive regulation. We think that bodes well for farmers and ranchers."

Another interesting flashback to Roberts' past involves the lawsuit against the beef checkoff program. Roberts helped argue, while he was in private practice at the Hogan & Hartson law firm in Washington, D.C., that checkoff-funded messages are government speech approved by the secretary of agriculture and, therefore, not subject to challenge under the First Amendment of the Constitution.

Lorane Hebert, an attorney who worked with Roberts on the checkoff case, said that the government speech argument first surfaced in checkoff litigation in 1989 when the 3rd Circuit

Court held that checkoff-funded advertising was not government speech and not immune from First Amendment scrutiny.

"After that, nobody was thinking so much about (using) that argument," Hebert said. "John has been credited with reviving it. Because it failed earlier, people thought it wasn't a winner. John recognized that it had legs."

The Livestock Marketing Association had sued to end the checkoff, claiming that it violated producers' freedom of speech. Ultimately, the Supreme Court ruled that checkoff-funded advertising is government speech, allowing the continuation of the program that assesses a fee on all cattle sold for slaughter and uses the funds to pay for pro-beef advertising and research. Farm Bureau supported the continuation of the checkoff.

This article was excerpted from AFBF’s publication Farm Bureau News.