President Bush’s two appointees to the Supreme Court have joined a conservative majority that has weakened federal protections for endangered birds. As an appeals court justice, John Roberts wrote a dissent in a case in which he argued that the federal governement did not have the authority under the Interstate Commerce Clause of the U.S. Constitution to restrict development under the Endangered Species Act due to the threatened status of a toad that lived only in the state of California.

Justice Samuel Alito’s opinions as an appeals court justice hinted that he would restrict the federal government’s power under the Interstate Commerce Clause to protect the environment and endangered birds and animals.

Since coming to the Court, both Alito and Roberts have voted to weaken federal regulations of wetlands. In June 2007, the two new justices were part of the majority which ruled that the Environmental Protection Agency does not have to consider endangered species before handing over Clean Water Act regulatory authority to states that request it.

 

William H. Pryor Jr. has become the ideological and legal spearhead for the Bush administration's retreat from the protection of birds

In a brief filed with the Supreme Court in 2001, William H. Pryor Jr., then the attorney general of the state of Alabama, argued that the federal government lacked the authority to prevent the destruction of wetlands that are home to migratory birds. This was a matter that only states could regulate, according to the Pryor brief. He later testified before a Senate committee that the federal government “invaded the province of the states” by enforcing the Clean Air Act.

In December 2003 President Bush, through a recess appointment, placed William H. Pryor Jr. on the Eleventh Circuit Court of Appeals. The court has jurisdiction over the states of Alabama, Florida, and Georgia. Pryor sat in judgment over key environmental cases affecting the Everglades and other wetlands in Florida.

The Bush recess appointment of Pryor to the appeals court was made without the approval of the Senate. The appointment expired after Bush's first term. Pryor was renominated for a seat on the court.

The May 23, 2005 agreement by 14 U.S. senators to end the debate on judicial filibusters provided for a Senate floor vote on the Pryor nomination. On June 9, 2005, the 43-year-old Pryor was confirmed to a lifetime position on the U.S. Court of Appeals. The Senate approved his nomination by a vote to 53 to 45.