Roberts On Takings
The final area involving the Constitution in Exile where Roberts seems
to the left of O'Connor, and perhaps even Rehnquist, involves
Congress's power, under the Fifth Amendment, to take private property
with just compensation. As a law student, Roberts wrote a note
rejecting a rigid libertarian reading of the Takings Clause. "[T]he
words of the clause ... are incapable of being given simple, clear-cut
meaning," he wrote. "Indeed, the very phrase 'just compensation'
suggests that the language of the clause must be informed by changing
norms of justice." At his confirmation hearing for the D.C. circuit,
Roberts joked, "I would, if confirmed as a circuit judge, follow
Supreme Court precedent in this area, as in any other. I would not
follow my student note; no one else has." Nevertheless, Roberts won
the admiration of environmentalists as an appellate advocate when he
argued that a development freeze in Lake Tahoe did not
unconstitutionally take the property of local residents. The Supreme
Court agreed with Roberts in a 2002 opinion that, according to Douglas
Kendall of the liberal Community Rights Counsel, "stopped the takings
movement in its tracks." Writing in The Washington Post, Kendall
praised Roberts for writing "the best legal brief I've ever read in a
takings case" and for his "ability to see both sides of a divisive
issue." Nor was Roberts merely representing environmentalists as a
hired gun: In his Senate questionnaire for his appellate nomination,
he emphasized that the Lake Tahoe opinion "shows a robust regard for
the need for government regulators to be afforded broad flexibility in
undertaking vital environmental measures."
--Excerpt, The National Review