August 25, 2005


by PG

With the Court in recess and the Roberts nomination marching toward confirmation (although I have been getting a lot of PFAW e-mails indicating that it won't be as easy a vote as I'd assumed), the justices appear to have little to fill their time except making speeches and collecting fees. Antonin Scalia, for example, will be teaching a Separation of Powers course for continuing legal education credit at the end of September.

If I were Wings & Vodka, this might be a post about who ghostwrites the Justices' speeches, or the portions of their anatomies that got most sunburned this summer. As I am not W&V, this will be a dull and humorless post about both lay and educated opinion regarding the link between jurisprudence and political preference.

In the New York Times today, Linda Greenhouse reports on a speech Justice Stevens gave last week to a Nevada bar association, which speech also was mentioned in the Associated Press article about the Court's refusal to reconsider its eminent domain ruling. Helvidius declares that Stevens must be following his desire rather than duty in the cases where the justice rules in favor of his preferred policy outcome, and concludes, "What is most telling about Ms. Greenhouse's piece is that Justice Stevens' not adhering to his own policy preferences is somehow novel." I think that this may be both an injection of Helvidius's own legal beliefs and a misunderstanding of what Stevens was trying to say with his speech, though having no psychic abilities to peer into either's head -- nor the full text of Stevens's speech -- I can only guess.

First, Stevens made explicit in Raich how much he would have liked to rule on behalf of the medical marijuana users, just as O'Connor said exactly the opposite: that she never would have made the law, but felt obliged by her understanding of the commerce clause to let it stand. This was a much greater contrast than that of Kelo, in which the dissenting O'Connor and Thomas bewailed the injury to the unfortunate. I had thought those without any property for the government to take to be the most unfortunate, but apparently having property taken against your will, even when you are compensated for it, is more deserving of conservative pity.

Anyway, duty and desire can converge, and generally do, far more often than they conflict. Justice Scalia, for example, rarely seems to see a strong duty to enforce the establishment clause of the First Amendment; his philosophy of the Constitution generally dovetails nicely with his political preference. Even in his criminal law jurisprudence, his desire to protect the accused essentially ends once the accused has been convicted and sentenced. Up to that point, Scalia is a defendant's friend: insisting that witnesses testify in the courtroom so the defendant can exercise his right of confrontation, and demanding that juries certify each element adding to the sentence prescribed by the guidelines. Afterwards, the convicted person may have many reasons for appeal or rationales against the death penalty, but he will find no help in Scalia.

But I never would accuse Scalia of failing in his duty to judge cases by his best understanding of the Constitution merely because that duty most often directs him to rule in a way that happens to coincide with his political desires. Nor should Steven be said to ignore his own version of that duty in the cases where his legal judgment converges with his policy preference.

The point of the speech seems to have been somewhat educational, to remind the bar association members and the larger public that despite what the current confirmation chatter might lead them to think, judges don't just apply their ideal political views to the cases that come before them. Justice Stevens could have been trying to distance himself from the results of two unpopular rulings, but he also or alternatively might have been making a point about how such rulings come to be.

Judges' roles have become increasingly controversial, and while the judiciary should be criticized as freely as the other two branches of government, we may need to remember that unlike the executive and legislative, the "least dangerous" branch only can decide what other actors bring before it, and should be doing so with a consistent comprehension of law that can bring about undesirable ends. At that point, the political branches must check themselves and each other -- Congress or a state legislature slapping down New London's political bodies, for example -- instead of depending on the judiciary to do this work for them.

(Random Question: Why would anyone buy Breyer's new book if it's just the Tanner Lectures available here, except with footnotes?)

August 25, 2005 01:36 AM | TrackBack

Maybe the footnotes will be gold-plated!

Posted by: Will Baude at August 25, 2005 03:10 AM

Incidentally, it's all well and good to say that it's the legislature that should slap down the New London Development Corporation rather than depending on the court to do its work, but this misses O'Connor's and Thomas's point.

If a legislature does act to reign in the NLDC, how would it do it? By enacting a law. And how would that law have effect? By being enforced by judges. So really the only question was whether the legislature (or the people of the united states or the state of Connecticut) had already enacted such a law, namely the takings clause. I understand there is dispute on the question of what the takings clause says, which is fair enough, but it was enacted by the political branches too, so let's not be nasty to it just because it's old.

Posted by: Will Baude at August 25, 2005 03:17 AM

A great read for progressives is "Un-Making Law, The Conservative Campaign To Roll Back The Common Law" by Jay M. Feinman, Beacon Press 2004. This book was published before the Kelo decision came down. Feinman stresses the conservative movement's attempts to consider just about any limitation on property, real, personal, intangible, to constitute a taking, despite the evidence of original intent and many, many years of interpretation of the Fifth Amendment by SCOTUS. The attack on Kelo is part of the strategy of conservatives, now well armed with the Federalist Society inroads into all branches of the federal and state governments, to bring back the good old days, which by coincidence may be profitable to its members. For an update website on Feinman's book, see:

Posted by: Shag from Brookline at August 25, 2005 07:38 AM

But I never would accuse Scalia of failing in his duty to judge cases by his best understanding of the Constitution merely because that duty most often directs him to rule in a way that happens to coincide with his political desires. Nor should Steven be said to ignore his own version of that duty in the cases where his legal judgment converges with his policy preference.

Come on PG. Surely equating the two is not as easy as a couple examples. Look at Justice Scalia in BMW v. Gore/State Farm v. Campbell, in Booker. Justice Scalia would never find a substantive due process right to get a policy preference, would never use foreign sources to support an interpretation of the constitution. Justice Stevens' views on substantive due process, foreign sources, the establishment clause . . . are not based on an honest inquiry into what the Constituion does mean, but what he wants it to mean. That is desire, not duty, and I see no (with few small and arguable exceptions) such evidence in Justice Scalia's opinions.

Posted by: Helvidius at August 25, 2005 02:30 PM

I agree with Shag on the Kelo point, however. I think conservatives are mixing politics with interpretation. The "the good old days" where the Constitution protected against takings for public economic benefit is a myth.

Posted by: Helvidius at August 25, 2005 06:15 PM

This is a small aside, but it doesn't really hang together to say that Scalia ceases to be a defendant's friend once the case reaches the appeal stage. The only way a defendant's case ever gets to Scalia is on appeal. And essentially every appeal, whether accepted or rejected, has to do with the conduct of the trial. If you're looking for an aphorism, it might be more accurate to say that Scalia is a friend of the 5th amendment but not of the 8th.

Posted by: Tom T. at August 25, 2005 07:51 PM


If it is a myth that there were no days prior to the expansion of the meaning of the takings clause from public "use" (what the text says) to public "purpose"--what the Court says, then why does Justice Stevens suggest that it is 100 years of jurisprudence that compel his answer, rather than simply that this is what the Constitution itself says--what the framers wrote?

The answer, despite your valian attempts to defend a certain professor's winning amicus, is that Justice Thomas and Justice O'Connor are not pointing to myth, and that the history of the Stevens-Merrill-Helvidius reading is a history of continuing expansion, an expansion so egregious that even Sandra Day O'Connor, who joined it in Midkiff, hopped off the train in Kelo.

You might like the trajectory of expansion. You might even think it is required by some version of stare decisis and judicial restraing (though that's a weird form of judicial restraint for a federalist to adopt--"local governments' expansive readings of what should be a check on their power must be respected by me"--but please stop trying to deny it.

Posted by: T. More at August 26, 2005 08:27 AM

Back to stare decisis, are we? First, that "public use" was even intended to be a constraint on the type of taking permissible under the Fifth Amendment is not at all clear. The original meaning of the takings clause is one of those areas where the anti-originalists have us--original understanding does not yield a clear answer. Before that winning amicus had to be chopped down to comply with page length requirements, it had a great section on the different versions of the original meaning of the clause. There is no conclusive original meaning.

So, the question becomes, where else do we turn? From the first Court to interpret the clause up to Bermann and Midkiff, the Court has always interpreted it the same way, as requiring a rational legislative basis for the taking. That has always allowed takings for economic development.

This is one of the areas where stare decisis saves originalism. Originalism would not "work" if everytime a takings case came up another Court got to take another crack at interpreting the public use clause. If we think that stare decisis is a good idea even in areas with decades of precedent that conflict with what we know the original understanding to be, we have to think it is a good idea when we don't have a reliable history.

Besides, HPM thinks it should have been 9-0.

Posted by: Helvidius at August 26, 2005 11:42 AM

Oh, and I don't like the trajectory of expansion. I think there are serious problems with the way eminent domain is being used. But I don't think changing our reading of the Constitution to fix those problems is the answer. Nor, incidentally, do I think that strengthening the public use clause is the best way to do it.

Justice O'Connor's opinion is a mystery to me. Her reasons for "jumping off the train" are because of the way the eminent domain market has moved, not because Kelo is somehow distinguishable from Midkiff. Desire, not duty.

Posted by: Helvidius at August 26, 2005 11:58 AM

No, that won't work. If it's an expansion, with a trajectory, then its not likely to be REQUIRED as Stevens and you claim. Secondly, though I think Midkiff itself went too far, why is it not a distinction to say that a person whose home falls into a place that (a) is a blight on the community or (b) partakes of an inarguably unjust, pre-modern, feudal land scheme then there is a legitimate "public use" in the taking, whereas merely being a theoretical opportunity cost is not public use? I might think that the first case is also not a public use, but certainly there is a distinction, and indeed a fairly bright line between the two.

Is there anything confusing about the distinction, anything fuzzy that would make the difference between a harmlike cost (blight, feudalistic land distribution) and a theoretical opportunity cost generally hard to determine?

Merrill is a smart man. He's just wrong here. Thomas and O'Connor were right.

Stare Decisis is just another way of saying "wrong."


Posted by: T. More at August 26, 2005 10:48 PM

Oh, and no, we don't have to think that stare decisis is a good idea on its own terms--stare decisis is a doctrine that must permit us a few things. One, it should permit us to cabin expansion--what the heck is stare decisis good for if it not only requires us to hold to bad prior decision but to let them grow, like a cancer on the body politic? That's conservative? HPM may like it, but he's not the Roman Pontiff, who is also not infallible when it comes to Constitutional Law, as it happens.

So, stare decisis can't save originalism or anti-originalism from an expansive trajectory, properly understood, it should halt expansion. That is, stare decisis is at least a tacit acknowledgment that the original reasoning was shaky. It is, therefore, at a least a tacit acknowledgment that fidelity to the law does not mean "oh, well, take the ball and run with it!" Bear in mind also that HPM's originalism does not appear to be as "original meaning" based as "original intent" infected, which makes certain things murkier. It is not murky, and it does not require historians poring over documents, to see that the word purpose was available, and that the word use was chosen. It only takes an historian as able as Stevens to note that it took a hundred years to settle on "purpose" rather than the "narrow" "use"--odd that one should dither in such a case, "use" being the very word in the law. Thomas's opinion is quite persuasive on this history, I think.

To sum up, one should always be wary of "different versions of original meaning" arguments, since they almost always tend to shade into "original intent" arguments. But here we are arguing from the absent portion of an amicus brief. Arguing Thomas's history against that of Stevens in this case, I'll take BOTH of them to agree that it took a hundred years to settle on "purpose" and another hundred years to get to Kelo. That ain't original, and it ain't stare decisis. It's expansion, it's activism, it's legislation from the bench, even if HPM wanted it to come out 9-0.

Posted by: T. More at August 26, 2005 10:59 PM
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