Property Rights Decision: A Reminder of the Importance of Good Judges
As a rule, I don’t criticize court decisions until I’ve read them, and I haven’t had time to read the Supreme Court’s decision in Kelo v. City of New London. I see people across the blogosphere (on both sides of the fence) are angry. Based on a quick glance at the lineup and the quickest possible skimming of the opinions, I have two points that don’t violate my rule against criticizing an unread decision:
1) It’s tough to condemn this decision and support the Court’s abortion-rights jurisprudence. Why am I jumping to the topic of abortion? Stay with me; it’s not as much of a stretch as it sounds.
If you disagree with yesterday’s decision, it looks as though your problem is not so much with the decision per se, but with the law leading up to it. If you really think the Supreme Court needs to do something in this area, you have to be willing to allow the Court to reconsider a fairly long line of precedent, simply because you think it’s wrong.
If you are a Roe v. Wade supporter, this will cause you consistency problems, since the only conceivable principled justification for keeping that poorly reasoned decision around is respect for precedent. And the Roe precedent is only 32 years old; the troubling precedents in the “public use” area go back over 50 years.
The same thing goes for the recent medicinal marijuana decision, by the way. For all the blog-driven criticism of Justice Scalia’s position in that opinion, the majority’s argument was mostly an application and slight extension of pre-existing law. The problem lay more with the precedents than with the decision itself.
2) If you disagree with the decision, it’s time to get on board and support President Bush’s judges. President Bush has said that he wants to nominate judges in the mold of Antonin Scalia and Clarence Thomas, both of whom dissented in this case. The majority was nothing more than the four liberals, plus Anthony Kennedy — the judge for whom I have the most contempt of all nine Justices.
Here I am speaking directly to any upset leftists, as well as to my friends the RINOs, including the Commissar, John Cole, Say Uncle, and Bill Ardolino.
I’d be willing to bet that any of the judicial nominees that the Democrats have filibustered would have voted for the view held by the minority.
If this decision upset you, let it serve as yet another reminder of the importance of having good judges in our federal courts. It’s a critical issue. Let’s start treating it like one.
UPDATE: Apologies to Jeff Goldstein for originally including him in the above list. As to the whole list, I sloppily conflated generalized RINO opinions (such as Jeff’s opinion on Schiavo) with softness on judges. Prompted by Bill Ardolino in the comments, I’ve gone back and looked at Jeff’s posts on the filibuster compromise issue again — and I do indeed recall reading his appropriately outraged reaction to the filibuster compromise. Reading these posts again — posts which, believe it or not, I did see the first time around — I am reminded that Jeff has been quite good on the judges issue. Indeed, his argument has been that the Schiavo flap would actually hurt Bush’s ability to get his judges through.
Apologies to Jeff.
I note that Uncle has withdrawn from the “Coalition of the Chillin’.” Good for him.
What about the rest of you in the Coalition?
UPDATE x2: I should note that my use of the term RINO is not meant as an insult. In the past I would have considered it as such, but I don’t any longer, now that the Commissar has appropriated the name to refer to his brand of moderate Republicans.
Yeah, I did.
SayUncle (56b6ac) — 6/24/2005 @ 8:13 amExcellent. I’ll probably post about your withdrawal later when I get a chance.
Patterico (c235d1) — 6/24/2005 @ 9:01 amThe Constitution says…The Constitution means…
One of the fun features that Mad Magazine would occasionally so was “what they say – what it means.”
Well, it’s time for a look at the Supreme Court and the US Constitution…
LyfLines (59ce3a) — 6/24/2005 @ 9:34 amActaully, the Abortion Amendment is held to be nearly absolute, unlike the explicitly stated amendments, which have all kinds of caveats.
Maybe it IS time to go back and re-find the Lochner “freedom to contract” amendment in the penumbra and enforce THAT to the hilt.
Kevin Murphy (9982dd) — 6/24/2005 @ 10:14 amI’d love to get on board and support Bush’s judges, but 1) the administration argued for the decision in Raich, and failed to argue for Kelo; and 2) are quite likely to be Christian-statists or Borkian-statists rather than libertarian or individualist. For every Janice Brown, there’s a dozen of the other.
I’m actually surprised that Scalia didn’t vote with the majority like he did in Raich.
Kevin Murphy (9982dd) — 6/24/2005 @ 10:20 amthe administration argued for the decision in Raich
Isn’t it the case an administration is supposed to argue an existing federal law is constitutional? The Bush Justice Dept. was enforcing the law as written.
Gerald A (fe1f90) — 6/24/2005 @ 10:34 amI’d love to get on board and support Bush’s judges, but 1) the administration argued for the decision in Raich, and failed to argue for Kelo; and 2) are quite likely to be Christian-statists or Borkian-statists rather than libertarian or individualist. For every Janice Brown, there’s a dozen of the other.
I’m actually surprised that Scalia didn’t vote with the majority like he did in Raich.
Well, he didn’t. The fact of the matter is that the solid conservatives voted in the minority, and the liberals (together with the disastrous Anthony Kennedy) voted in the majority. I betcha if Bork had been on the Court instead of Kennedy, the result would have been different.
You’re going to see more of this unless there is pressure put on Bush to nominate solid conservatives, and pressure put on Senate Republicans to push them through. Complaining that Bush’s judges might be statists (evidence, please?) doesn’t help.
Taking the stance that Say Uncle has, does.
Patterico (35e9e9) — 6/24/2005 @ 11:18 amWhat’s with that RINO stuff? I’ve been a staunch and consistent advocate of Bush’s right to have his judicial nominees receive and up or down vote.
Jeff G (17412d) — 6/24/2005 @ 11:27 amI betcha if Bork had been on the Court instead of Kennedy, the result would have been different.
Bork was about as statist as any judge in memory. Scalia isn’t quite that bad, but I can show you a decision were he argues (in dicta) that it would be OK for a state to outlaw third parties if the two-party system requires such protection. Scalia is not Thomas.
I see no reason to believe that a Bork who thought that the 9th Amendment was an unreadable inkblot would in any way obstruct a government action, given minimum due process.
Besides, two of the three most liberal justices on the court were appointed by Republicans, so that is no guarantee.
Kevin Murphy (9982dd) — 6/24/2005 @ 11:36 am#1 – Goldstein is one of the strongest supporters of conservative judges on the planet. Do you actually read his site?
#2 – “If you are a Roe v. Wade supporter, this will cause you consistency problems, since the only conceivable principled justification for keeping that poorly reasoned decision around is respect for precedent.”
I have no idea what parallel you are drawing. While Roe hinges around a “right to privacy” penumbra, it also features two sets of competing individual rights. Federalism is not the only prism that defines consistency under the law.
Legal consistency might be found in the scholarship of people like Professor Randy Bartnett, that asserts a very high standard for the “government to justify the restriction of liberty” in the creation and maintenance of a law.
From a philosophical standpoint, the consistency is terribly strong – the government can take a friggin’ hike.
Bill from INDC (da1376) — 6/24/2005 @ 11:44 amBill: I think the idea was that whether you want to overturn Roe or reverse the trend of broadening “public use”, you have to bag stare decisis.
Otherwise, I agree. There is no substantive contradiction between Roe and anti-Kelo. The jurisprudence is different, but individual liberties are upheld, to the exclusion of state and federal government respectively.
biwah (f5ca22) — 6/24/2005 @ 12:25 pmJeff G. said:
What’s with that RINO stuff? I’ve been a staunch and consistent advocate of Bush’s right to have his judicial nominees receive and up or down vote.
Jeff, you have. I libeled you; it wasn’t intentional. Sorry. Explanation in the update to the post.
Bill from INDC said:
I have no idea what parallel you are drawing. While Roe hinges around a “right to privacy” penumbra, it also features two sets of competing individual rights. Federalism is not the only prism that defines consistency under the law.
Legal consistency might be found in the scholarship of people like Professor Randy Bartnett, that asserts a very high standard for the “government to justify the restriction of liberty” in the creation and maintenance of a law.
From a philosophical standpoint, the consistency is terribly strong – the government can take a friggin’ hike.
Philosophy’s got nothing to do with it, Bill. The parallel is this:
Philosophy aside, Roe is a completely unprincipled decision as a legal and constitutional matter. Now, if you disagree with that, you might as well get off the train now.
But if you agree, then the only reason to keep it around is on stare decisis grounds: an argument that says “It’s been the law for 32 years and it’s deeply rooted in our constitutional interpretation.” Well, if that’s your attitude, good luck getting the Supreme Court to change its eminent domain jurisprudence, which is even older and arguably just as deeply rooted.
Hope that makes the parallel more clear.
Patterico (35e9e9) — 6/24/2005 @ 12:39 pmbiwah–
Stare decisis is not insurmountable. Plessy was overthrown even though it had a HUGE built-up base of law and custom surrounding it. Whittling back the state by Kelo or Raich or whatnot, or whittling back the courts by overturning Roe, is hardly as traumatic as overturning Plessy was.
Kelo could have been decided the other way on the margin, with limitations on private involvement in eminent domain actions, without overturning any great body of law. Same with Raich and medical marijuana.
Roe has no great body of law surrounding it either, unless you want to count the mass of judicially-killed laws as many states try unsucessfully to whittle Roe back. Stare decisis implies widespread agreement, and Roe has little such.
Kevin Murphy (9982dd) — 6/24/2005 @ 12:47 pmKevin:
I was just giving my take on Patterico’s earlier comment, which was that if you were either “pro” or “con” on adherence to s.d., you’d be in conflict in taking a roughly equivalent stance on the merits, i.e. anti-Kelo, pro-Roe. My point may be confusing and is not that important.
In any case, you’re right that Kelo and Raich were both significant extensions on precedent, not at all required by s.d. alone. The Court would have been reversing no earlier decision in simply toeing the line on the standards they ended up strectching in each case. Consider O’Conner questioning “what good is Lopez?” in light of Raich. Someone said we should go back to Lochner. I disagree, but maybe we should go back to Lopez. Ah, the good old days…
Both decisions reduce major limits on government power to a speck of verbiage leaving us wondering what the heck “interstate commerce” or “public use” ever meant, other than “everything”.
biwah (f5ca22) — 6/24/2005 @ 1:44 pmI have read the Supreme Court opinion. I have read the US Constitution and I have read the Connecticut State Constitution. The State of Connecticut’s constitution directly copies the Fifth Amendment’s wording of the Takings Clause. The plaintiffs in this case petitioned the state courts for a takings ruling. The state courts, including the Connecticut Supreme Court did not find an improper taking, ie they agreed that the proposed compensation was just and that the state courts provided due process of law. Given that, this case should have been unanimously upheld in favor of the City of New London based upon those facts.
As disgraceful as the result of this ruling may be, the proper remedy is to limit the power of the State and localities to use eminent domain, especially in private to private transfers justified solely by tax revenue considerations.
Charles D. Quarles (593219) — 6/24/2005 @ 2:26 pmLawrence vs. Kelo
There’s been lots of commentary — here, here, here, here, here, here, here, here, and here for example — about the Supreme Court’s Kelo eminent domain decision, and we don’t want to be redundant in offering our opinion on the case. Let’s just say…
The Unalienable Right (7a057a) — 6/24/2005 @ 3:57 pmThe Supreme Court should have found a way to keep that little old lady in her house, while preserving some of the effectiveness of downtown redevelopment agencies.
San Diego redevelopment around its new downtown ballpark has been a great success. This part of the city was dangerous and sleazy before they came in. One cigar shop owner in the way of the new Marriot Hotel was asking a lottery-sized price for his land, and he seemed to be threatening to make a mess of the area unless he got his price. Fuck that; the city takes the land and he gets only $3 million for his shop.
San Jose has declared 1/3 of itself blighted – 20 neighborhoods covering 10,000 acres. Of course all this land isn’t “blighted”, but this lets them fast track acquisition. Clearly that is abuse and must be stopped. To me, there is a moral difference between taking land from a lifelong resident, and taking it from a land speculator asking for the Moon.
Shredstar (91b3b2) — 6/24/2005 @ 4:21 pmCharles, I’m not a lawyer, and I don’t even play one on TV, so I hope you’ll forgive my ignorance in asking how exactly your solution of limiting the power of states and localities to use eminent domain would be implemented.
If I were doing it, I’d include in the document that organized the government and delegated its powers a restriction on the takng of property except for public use and only with adequate compensation.
As a layman, I fail to understand how something not mentioned in the Constitution can be enshrined as a right, while things that are plainly within the reading of the text can be summarily dismissed with, “It doesn’t really mean what it says.”
Roofer (b10d93) — 6/24/2005 @ 4:53 pmI’m a Conservative – small government, free markets, free trade, individual liberty, etc.
The Commissar (71a8e2) — 6/24/2005 @ 5:20 pmCharles–
From what you are saying, the state court’s interpretation of the meaning of the Takings clause is binding on the US Supreme Court just because the clauses are the same in both Constitutions?
I think you’ve got something confused. AFAIK, the state court’s conclusions are final when deciding FACTS, when the state law is the same as federal. So, if there had been no conflict about what the Takings Clause meant AT THE FEDERAL LEVEL, and the state court said the state action met the settled federal standard, there would be no further case — unless the Supreme Court wanted to change the “settled” understanding.
But this wasn’t the case — there were large federal differences among circuits, and a state court can’t play in that league.
Kevin Murphy (9982dd) — 6/24/2005 @ 6:07 pmHmm … Patterico … the (pro-WoT) Libertarian right is now RINO? What does one have to believe to be a Republican that a Libertarian opposes?
Kevin Murphy (9982dd) — 6/24/2005 @ 6:17 pmAmen! Amen!
What’s the use of the Presidency and the Congress, if just one Supreme Court Justice can change the scales?
All our appointees must be STRICT CONTSRUCTIONIST.
call and tell the White house.
David (03f14c) — 6/24/2005 @ 6:28 pmKevin,
I think the term “RINO” — as used by the Commissar et al. — stands for Raging Independent Not Overdosed (on Kool-Aid).
Commie wrote:
I’m a Conservative – small government, free markets, free trade, individual liberty, etc.
Well, then, Commie, you’d do well with the Bush judicial appointees. Why not climb aboard?
Patterico (756436) — 6/24/2005 @ 9:02 pmAll our appointees must be STRICT CONTSRUCTIONIST.
I’d prefer originalist…
Christopher Cross (a87c52) — 6/24/2005 @ 9:31 pmMr. Ruffini:
Brillant analysis as always. I enjoy seeing the comments of other bloggers and your rsponses. Some of the comments border on the obtuse, I mean using philosophy to discuse the law? What’s next a review of Decartes? The fact that five sneile old elitists trampled on the Constitution indicates that no rights are safe. I wonder how people like Bill who argue for a “living Constitution” and a selective interpretation of the law feel now that there are no absolutes.
I would apprecaite your consideration of writting something about the possiblities of certain municipalities condemning tax exempt real estate. I’d think churches and organizations like the Boy Scouts must be at risk in places like Portland or San Francisco. Your analysis would be interesting.
Thomas Jackson (708a0c) — 6/24/2005 @ 9:44 pmI’m one of them RINO folks.
I don’t want no more Scalias.
Thomas. Thomas. Thomas.
The man knows how to read.
M. Simon (6b79e8) — 6/24/2005 @ 10:03 pmMr. Ruffini:
Brillant analysis as always.
Thank you — but I’m not Mr. Ruffini.
Patterico (756436) — 6/24/2005 @ 10:14 pmRoofer,
The rights of men are vast. The powers of government are limited.
Our current court believes in the former (bravo) and not the latter (boo).
So there you have it. An originalist would follow my first statement where ever it leads.
The main problem with this court is the expansion of the powers of government.
BTW Roe need not be upheld on Stare Decisis basis. It could be upheld on a IX or X basis. Fundamental Liberty.
The morality of abortion has been well known for at least 2,500 years. So the precident has been set: you are at liberty to control & regulate your reproductive activities. Even if doing so is considered a moral wrong. Because, the reason one doctor spoke out against abortion 2,500 years ago was that others were performing them.
My reason for supporting Roe?
We already have drug police.
I do not want vagina police.
M. Simon (6b79e8) — 6/24/2005 @ 10:20 pmWhat’s left of the Texas democrats are all a stutter about this one, too, because it helps big corporations and developers:
“We Need a Mall Where Your House Is”
http://www.offthekuff.com/mt/archives/cat_legal_matters.html#005689
ttyler5 (edf81b) — 6/24/2005 @ 10:54 pmNew to this blog and not a lawyer. Several questions. (1) What does RINO mean? (2) why so much importance on precedent?
Seems to me whatever the ideological makeup of the court is at the moment is what drives the decision making process. If everything were based on precedent (which is what I keep reading), then what would it matter if judges were liberal or conservative? The fact of the matter is that liberal judges do not depend on the constitution nor logic to make decisions.
For example, Kennedy writing that juveniles have “an underdeveloped sense of responsibility” and therefore should not be held to the ultimate accountability (death sentence).
Makes one wonder when the matter comes before the court regarding teenage girls having to get their parents permission to abort a child. I wonder if these same liberal jurists will use a similar argument in denying the juveniles right to abort? Call me crazy, but for some strange reason, I doubt it.
Fred Newtz (b3c7d3) — 6/25/2005 @ 12:27 pmI am not a lawyer either, Roofer; but words have meaning. It is my contention that where the constitutional wording at the state level is exactly the same at the federal level, and the state courts used federal precedents in their ruling; then the ruling of the state court should have been dispositive, and that the federal court should have upheld it. OTOH, the ultimate problem here lay with the state law. Therefore the state power should be limited by the people of that state, and derivatively, the power of the cities and counties/parishes in the state to use eminent domain to its proper domain. IOW, the people of the state should elect a legislature that would limit the state power of eminent domain to its proper domain using the most specific language possible. Also, the same state’s citizenry should place in the courts the kinds of judges that would not stretch the law where it was not designed to go.
To Kevin, maybe I am confused; but then it is likely that everyone is confused. It would seem to me that if the wording is the same, the conclusions should be the same when applied to the same set of facts. The Supreme Court isn’t bound by the State Supreme Court ruling, since the facts to be considered may be different when another case is brought before it. If there were conflicting circuit court and or appeals court rulings, then the Supreme Court should harmonize them at the federal level where appropriate, and at the state level when it is proper to do so by the federal Constitution. I don’t see that here based upon the facts available to me. Have the IXth and Xth amendments been formally repealed?
I don’t think that this has happened yet, though functionally they have been repealed. That is, IMO, why the judge kerfuffle has been so bitter.
Finally, to M. Simon, Roe v Wade is a horrible monstrosity since it is wrong on its face constitutionally. Abortion is homicide. The federal Constitution left adjudication of justifiable homicide to the States. If you want abortion to be legal, that is, justifiable homicide; so be it, but only on a state by state basis. That was the way it was before Roe v. Wade, and when Roe v. Wade is overturned, that is where we will be as a matter of law. To me, logically and morally abortion is justified when the life of the mother is at stake and she will not live long enough for delivery to occur. Women have the right to refuse sexual activity. No sex, no baby; but have sex, you risk having a baby and if you do have sex, then you are responsible for the ensuing consequences. Logically and morally telling women that they can kill another human being at any time with no restriction is the same as granting the same power to anyone else. Is this truly the way we want our society to be?
Charles D. Quarles (593219) — 6/25/2005 @ 1:03 pmM. Simon,
Restriction of abortion is not restriction on sex. Abortion is simply the homicide of a nacent individual.
So you speak of individual liberty being fundamental, but apparently it is only a fundamental power relationship of control in your understanding–not an intrinsic naturally derived property.
Free activity without reponsibility is not liberal–it is libertine. Roe is destructive to individual liberty.
Paul Deignan (664c74) — 6/25/2005 @ 1:07 pm