Guess Who Calls Outcomes in Kelo and Raich "Unwise"?:
In a recent speech, a prominent federal judge called the outcomes in last Term's Supreme Court decisions in Kelo v. New London and Gonzales v. Raich "unwise."
On the question of Kelo v. New London, the eminent domain case, this prominent federal judge explained that "the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials." As for Gonzales v. Raich, the medical marijuana case, the judge explained that "I agree with the policy choice made by the millions of California voters."
The name of this prominent federal judge? John Paul Stevens, the author of the majority decisions in Kelo and Raich, who explained that while he opposed the results in both cases as a matter of policy, he felt compelled to reach them as a matter of law.
UPDATE: Mike Rappaport responds over at The Right Coast: "Give me a break."
On the question of Kelo v. New London, the eminent domain case, this prominent federal judge explained that "the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials." As for Gonzales v. Raich, the medical marijuana case, the judge explained that "I agree with the policy choice made by the millions of California voters."
The name of this prominent federal judge? John Paul Stevens, the author of the majority decisions in Kelo and Raich, who explained that while he opposed the results in both cases as a matter of policy, he felt compelled to reach them as a matter of law.
UPDATE: Mike Rappaport responds over at The Right Coast: "Give me a break."
Why is this guy a judge, even I can read and understand the fifth Amendment.
You're exactly right, we've got to get rid of those judges who follow the law, and get us some more "activist" judges, who will manipulate the law to get the result they want. Grand idea!
this is also exactly what struck me. greenhouse is strongly implying that good jurisprudence is intrinsically left and open-minded conservatives will realize this.
citing the scalia dissent in lawrence would have given an entirely different impression.
btw, an alternative (and very cynical) interpretation of stevens is that on some level he realizes law is a clumsy tool and was willing to sacrifice some policy priorities (medical pot) in order to preserve others (an expansive view of the commerce clause in general and all that implies for labor, environment, civil rights, etc.)
You are spot on. Scalia has been mentioned this type of conflict for years now and yet he goes unmentioned. Overall, the piece struck me as overly positive towards Stevens although I believe that he (like Scalia) can, at the least, be commended for thinking clearly about the law vs. his viewpoints.
I agreed with Stevens on both the merits of those opinions and their unfortunate outcomes. Was it Jefferson who said the cure for bad laws is to enforce them? The Kelo decision is having excellent effects, to judge from the newspapers.
It's not clear he's really setting aside personal preferences for love of the law here. An alternate interpretation of this sentence is that a more restrictive view of the commerce clause would force him to abandon other policy choices he favors (the "broader stakes" to which he refers).
I would be curious as to other opinions, concurrences, and dissents that clearly advocate law contrary to the Justice's policy preferences. The first that comes to mind is Clarence Thomas' dissent in Lawrence v. Texas, where he calls the Tezas law "silly" and states that he would not have voted for it in the Texas Legislature, but is compelled to vote to uphold it as constitutionally acceptable.
I wonder if there's any way to use this as a jumping-off point for questioning Roberts in the nomination hearings.
Mr. Anderson: is calling Mr. Stevens a "little old man" one of the "nasty remarks" to which you refer? I personally find it a very mild characterization, and would welcome a public debate on the likelihood that he, and the other extremely old justices, are senile to the extent that they can no longer said to be performing their jobs. Rule by nine justices is bad enough; rule by their clerks is worse.
But, one of the angry commenters, like, bill-10k, was quite funny:
I have been practicing just under for 10 years (2 as a law clerk). I have litigated 5th amendment issues in state and federal courts (though never before the Supremes).
I have written scholarly works on the subject. However, I still can’t claim to “understand” it in a way that avoids dispute.
As to the people who like to talk about the “primacy of law over personal opinion” I have never met someone who claims that they are unable to divorce the two in their head. They always claim that everyone else is unable to do that, and only if they disagree with the position taken. Therefore, I think that this is a rhetorical device for non-lawyers.
My dad's "senile" (dementia, Alzheimer's, who knows), and while it's in the early stages, it's not hard to miss.
For that matter, of the 3 or 4 clerks that Stevens has, I very much doubt that at least one wouldn't blow the whistle if his boss were mentally impaired, in today's media climate.
So maybe judges should be evaluated by their actual deeds, not by their ages simpliciter.
If you've "never met someone who claims that they are unable to divorce" personal opinion from legal interpretation, then you need to get out more. I've met too many people, both law students and practicing lawyers, who deny that any Constitutional or statutory interpretation, no matter how well accepted and established, could be correct because they dislike the outcome. Even if the text is relatively clear and uncontroversial, they simply list a parade of horribles and declare that no responsible/educated/sane/progressive judge could possibly vote for an interpretation that allows these outcomes because they are bad. When I told one of them that, while I think California's Three-Strikes law was ill-advised and I wouldn't vote it, but that I believed it was Constitutional, their head practically exploded. I was peppered with vaguely coherent harrangues about how I could possibly arrive at such a bizarre conclusion considering how awful the law was. Trust me, Larry. They're out there in droves.
It is nice to see Justice Stevens make a formal declaration against conflating personal opinion with interpreting the law, but it amounts to a declaration that "puppy dogs are nice." No judge should twist the law because they want to see more drug dealers in jail or more power for a centralized Congress. Yet many do - even while stating that this type of manipulation is wrong. I respectfully disagree (note: respectfully - some you guys need to grow up a little) with Justice Stevens' position in both cases but hope that his declaration was sincere.
I sharply disagree with both decisions. While I consider the Kelo decision defensible, I think the Raich decision is very hard to justify.
Over the years, Stevens has shown himself to be politically shrewd, at least according to his admirers. He evidently likes to think he has a good pulse on public feeling. I suspect he was surprised by the criticism of his findings, however. He doesnt like that, and he wants to show that, yes, he really is a caring fella and doesn't like to impose undue suffering on disfavored groups (marijuana smokers and poor or powerless home owners, often minorities).
Is this proper for a Supreme Court justice? I dunno. I guess it's better to know what he's thinking given how little we actually know about what goes on in the court. I just think that he has an ulterior motive that's less than pure, but then, he's not the first justice for whom that is the case.
What is bizarre is that anyone should not connect the all but inevitable outcomes with the dogma of expanding power. Lord Acton pointed this out some time ago.
Similarly, Kelo follows quite nicely behind almost 200 years of Court decisions generally giving a broad intepretation of "public use" in the Takings Clause. The most expansive of these decisions were Berman from 1954 and Midkiff (authored by Justice O'Connor) in 1982. Once again, I think the City of New London went too far and the Kelo decision stretches this interpretation of the takings clause to an unacceptable point. But a contrary opinion (given to us by Stevens) is quite within the mainstream on this issue.
Well, personally I agree with Kelo, but I think that the reason that I might think that this is a valid exercise of the 5th might have something to do with the fact that I really don’t like people like her. The dissent just caved into their personal whims because it was a sympathetic plaintiff and they had hoped for more judicial activism that would usurp the power of the democratically elected city counsel. Luckily, the majority prevailed, and this slum will soon be leveled.
I have written scholarly works on the subject. However, I still can’t claim to “understand” it in a way that avoids dispute.
I have a war story about that. Awhile back cops came to my door, read me my rights, and asked if I understood them. I'd had Mike Middleton for criminal procedure, so I correctly answered "No." They weren't happy, and proceded to make up charges against me (that were later dropped,) put me in jail and torture me, but I stand by my answer.
I don't see that the federal government's attempt to control school gun violence, or to stop misogynistic violence, is any less of a "comprehensive regulatory scheme" than prohibition of marijuana use and production. Any justice who votes one way on Lopez and Morrison and another way on Raich, especially a justice of known conservative view such as Justice Scalia, must be strongly suspected of letting his policy beliefs interfere with even application of constitutional principles.
Some sort of liberal conspiracy? Seems to me the whole court agreed save for Marshall who didn't take part.
Second with respect to Raich, it seemed to me that the dissenters from U.S. v. Morrison and U.S. v. Lopez were trying to reel back in Commerce Clause jurisprudence. Scalia jumped on with the concurrence for maintaining his own principles. (though I admit readily I have not read his concurrence).
"For those of you who think that Kelo is a mainstream decision and consistent with prior cases, I will point you to the dissents which are far more persuasive then the thin "reasoning" of the majority, the surprise of the decision and the near universal condemnation it has received from both ends of the political and academic spectrum."
to be deeply unsatisfying? Right or wrong, I prefer explanations over blanket unsupported assertions. This is not a remark on the accuracy of the post itself.
It is also, however, an interesting question about why the Kelo decision did cause such an uproar. In Texas, they've now passed a limit on the eminent domain power. Of course, they had to provide an exception so they could use the power to take the homes that will have to be bulldozed so the City of Arlington can build a brand new stadium for the Dallas Cowboys. It was happening already. And although I guess the City will "own" the stadium, I'm sure the lease terms will give Jerry Jones all but complete control. And if you don't pay the bucks, you can't come in. Public Use???
Condemning private property to give the Dallas Cowboys a new stadium with (presumably) more luxury boxes is bad public policy (in my opinion), but it is not unconstitutional.
Also, the action of the Texas legislature is classic hypocrisy: "let's ban this unconstitutional practice, except when we REALLY like the result ..."
I was wondering about this aspect of the decision, since I have heard no one address this very adequately. The thing that most troubles me about the decision, even more than the idea that you don't have a right to your own home, is the idea that a City of New London can cede its takings power to a private entity, the New London Development Corporation. How is that Constitutional? The City has takings power, even under Stevens' reading of the 5th Amendment, but the NLDC does not. It's sort of like allowing a town to contract out Courts to a private firm. After all, the NLDC is not constrained by the democratic process to engage in takings that are necessary for the public good, like a government would be. I'm not a lawyer, so I'd be interested in hearing about this.
Now if somehow this 49% market share were considered a dominant position and there was some sort of abuse going on, one might be more successful to change things under the Sherman Act.
And as has already been stated here and elsewhere, if everyone is so ticked off about the decision, talk to your local representative..it wouldn't be the first time state and fed legislatures have reacted to a SCOTUS opinion.
Nearly every criminal appeal where the defendant wins involves a correct interpretation of the law with an undesirable outcome. Judges and Justices of every interpretational stripe have loosed a drug dealer, murderer, or all around thug back into society for purely technical (meaning, Constitutional or statutory reasons) despite solid evidence of guilt. The overwhelming majority of these cases are not controversial and observers, both legal and lay, of every political persuasion are apt to say that the interpretation of the law was correct and the outcome was bad. Even Justice Thomas writes opinions to let criminals free and neither he nor his fans are very happy about it.