I just felt obliged to write something in the wake of the O’Connor resignation and the Kelo case. And please forgive the awful Stallone movie-inspired title, but it is apt.

Judicial review is a tricky thing. In the media, I have frequently heard O’Connor referred to as a justice without a philosophy, other than pragmatism; that she tried to decide the case at hand, and tried to limit her ruling to so satisfy the case at hand and avoid overbroad rulings. Sometimes, in these attempts, she would formulate various “tests” that some believe smack of judicial legislation. The most famous of these tests is the “undue burden” test for anti-abortion legislation.

So, what do we want in a new justice?

I don’t know.

When it comes to judicial review, the popular political pigeon-holing into “conservative” and “liberal” does not guide us in the same way as it does with legislators. Judges have a profoundly different task; to competently and honestly interpret the law and the Constitution in disputes brought before them. Their role is further constrained by the widely accepted doctrine of stare decisis (let the decision stand) which impresses upon justices to follow rulings previously made by the court (I find stare decisis a little silly… either you got it right the first time, or you didn’t… though past decisions make for great sources of authority in legal arguments regardless… and stare decisis from higher courts is important for lower courts to follow).

We recently saw how the liberal-conservative distinction does not quite fit in the Kelo case. The “liberals” of the court ruled that local governments can use their eminent domain “takings” power to acquire private homes for the purpose of private (as opposed to public) economic development. They gave wide discretion to local governments to determine what types of takings are in the public interest. And local governments are clearly the easiest to be bribed, corrupted, or simply pressured by powerful corporate interests like Pfizer, or other powerful local interests and individuals.

Perhaps the liberals were being principled. They believe that local governments should be allowed to use eminent domain for the public interest, and perhaps they fear that by curtailing it even in New London’s case might chip away at the rights of local governments to make these decisions in general. Judges often write that, theoretically, the local lawmakers are in the best position to make these decisions for the public interest, not judges who understand nothing about economic development in general, nor know nothing about a local economic situation in particular. In Kelo, the liberal judges may have wanted to prevent future “conservative” judges from denying municipalities the use of eminent domain when the purposes are truly motivated to support the general welfare, and have them deny the takings on the basis of whatever technicalities that could have been devised in the New London case.

EDIT: Here is a quote from the case,

Just as we decline to second-guess the City’s considered judgments about the efficacy of its development plan, we also decline to second-guess the City’s determinations as to what lands it needs to acquire in order to effectuate the project. “It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.” (citing another case)

-Stevens’s majority opinion in Kelo v. City of New London

END EDIT

But courts also have the role of protector of constitutional rights and liberties. Couldn’t the “liberals” have struck a better compromise between the two? Russ Mokhiber and Robert Weissman think so:

The homeowners in the case argued for an aggressive ruling, recommending that economic development should never be permitted as a rationale for eminent domain actions.

But there are less-far reaching alternatives that would also curtail abusive eminent domain actions.

As a second option, the homeowners suggested that economic development takings should only be permitted if “the government can show a reasonable certainty that the project will proceed and yield the public benefits that are used to justify the condemnation.”

This eminently reasonable approach would put a check on takings for vague purposes to be determined later — as is the case in the in Kelo v. New London case, and many others.

It would also require some kind of contractual certainty that land transferred to private parties would yield the promised benefits. That would halt the kind of abuse that occurred in Toledo, where 83 homes were condemned to make way for a truck staging area for a refurbished DaimlerChrysler plant. DaimlerChrysler said the plant would provide 4,900 jobs, but it ended up employing less than half as many.

Another useful approach was proposed in a law review article by Ralph Nader and Alan Hirsch. They argued that the government should have to show a compelling interest in eminent domain cases where condemned property was to be transferred to a private party and the party whose land is taken is relatively powerless politically.

Although the Supreme Court has now settled the issue as a matter of U.S. constitutional law, there is still an opportunity for more reasonable approaches to be adopted. States, under constitutional law or legislation, may impose the reasonable restraints on use of eminent domain that the Supreme Court refused to establish.

Quote is from ZNet, here.

I am currently working in a legal services office that is handling a case with a very similar situation as New London. The local municipality is trying to use their takings power to remove a large, lower-income, mainly hispanic residential neighborhood. They argue they need to make the the residential area less congested to eliminate “blight” (funny, NYC has incredibly congested residential areas, and its doing just fine). They will be tearing down hundreds of low-income homes and rental properties. In their place, they will be putting up hundreds of middle to upper-income condominiums, amongst other things. And it won’t be any less “congested.”

The Kelo decision has no substantial effect in this case, since the state takings law offers more protection than federal law.

But our senior attorney, who is handling the case, clued me in on some of this: you will never see middle or upper income housing torn down and replaced by low-income/rental housing and housing projects. It is clear that Kelo, and eminent domain in general, will only be targeted against poor communities. Once the poor, usually minority, residents are removed, they will be looking for new housing. The prices for all housing will be driven up; the affordable housing has been replaced, thus reducing the supply of affordable housing, thus increasing the demand. The local community organizations in these taken neighborhoods will be disintegrated, thus eliminating the only political power the low-income residents have, thus giving them even less say in local government (and they already did not have enough political power to prevent the taking). Furthermore, with Kelo on the books, people and businesses will be less willing to invest in low-income communities, for fear that at any time the municipality will eliminate their investment, offering only takings compensation. The compensation should be fair market value, but the compensation will always be discounted. The very existence of a taking necessarily devalues businesses and housing. The compensation also ignores all of the other enormous personal, social, and financial issues associated with being uprooted from one’s home and community. And all of this is just the tip of the iceberg.

Kelo is just one example of how the court’s “liberals” may decide cases in ways that stand in opposition to the interests of poor communities, the very people any good progressive is looking out for. As we often saw with O’Connor, in Kelo and in many other cases, and as we often see with other justices, we never know what kind of judge we’re going to get, even if we think we understand a judge’s ideological underpinnings, and even if we don’t agree with a judge on any issue of policy. This isn’t to say we’re totally in the dark. But I’m not too afraid, though perhaps I should be. If someone can fill me in on any scary details about new nominations, or new ways the court may swing, I would appreciate it.

EDIT:

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. “That alone is a just government,” wrote James Madison, “which impartially secures to every man, whatever is his own.”

-O’Connor’s dissent in Kelo v. City of New London.

END EDIT

UPDATE, 7/20/05:

Since Duc linked to this older post in his latest post, I thought I’d revisit it just for a sec. Here’s a post from Mary of The Left Coaster which tries to make a case that we should be concerned about Republican vs. Democrat nominees. Interesting stats. But what do they really show? They probably show us that ambiguity and uncertainty in the law may result in a judge’s policy preferences deciding the case at hand. But the stats may actually tell us that either Democrat-appointed judges are more willing to stretch the law, or that Republican-appointed judges are more willing to stretch the law… you just can’t tell by the numbers alone. I don’t mean to belittle the value of looking at these stats. But we may reach more sound conclusions by looking at the cases themselves.

I will also point out that these stats are generally irrelevant for our current situation with Judge Roberts (unless the stats were meant to show why we should be obedient to Dems when they try to scare us during elections with SCOTUS appointment horror stories). There was no doubt that we were getting a Republican appointee. The question remains whether this man is a partisan hack or a corporate hack… or perhaps we’ll see he is a principled judge who happens to rule in conservative friendly ways because the law is in fact conservative… or perhaps we’ll see just the opposite.

And, once you’re a Supreme Court justice, to whom must you answer? Nobody. Does the judge have fealty to Bush? Perhaps. But now that he’s in, there is no reason to suspect that any past cronyism needs to be maintained. If Roberts was never engaged in cronyism to begin with, but instead possessed an honestly held philosophy about the public good that led to his support of Bush, then can we really say this guy is bad? Misguided, perhaps. And possibly destructive. But if he’s honest, then we can expect him to largely decide cases honestly. And if the results are bad, that may say more about the state of the law and the nature of the Constitution than it says about the judge.

Not the best analysis, but I’m a bit busy right now. Though I criticize the worriers a bit, I really value the fantastic job the various blogs are doing in learning about Judge Roberts and spreading the info. Just playing a little Devil’s Advocate.