As I read through it an interesting thought crossed my mind. Just for fun, let’s say Alito was replacing Scalia instead of O’Connor.

I wonder if opposition to him from Democrats would be as large. My guess is no. My guess is that the vote for him would come out at least as lopsided as the Roberts vote if not more so. My guess is that Democrats would be thrilled to get anyone less “Scalia” than Scalia and would thank their lucky stars that they got Alito. I think this because that was their stance with Roberts. “At least he is replacing Renquist so it’s a ‘push’ as far as ‘balance of the court’ goes.”

Presuming that’s true, what does that really mean Democrats stand for in this context. Do they really have such little regard for a nominee’s actual qualifications to be on the court? Is it really all about moving the court in one direction or another?

Based on their questioning of Judge Alito it would seem so, and I think it’s shameful. Of course, maybe that is why the Democrats have been so miserable at getting traction against these last two nominee’s. Maybe that is why the public in general could care less about these hearings. I’m happy to say the Democrats could really learn something from their Republican peers here: approve qualified candidates regardless of the direction they are likely to move the court (can you say Ginsberg and Breyer?)

A prediction - the Republicans will not stay in the Whitehouse forever (that’s not the prediction). The next time a Democrat president nominates a qualified “liberal” judge to replace a “conservative” judge the Repulicans will engage that nominee in a lively debate about the constitution and the courts and then overwhelmingly confirm them regardless of the direction they will move the court. That’s because, in this situation, the Republicans know how to do the right thing.

But, I also believe in the principle of giving props when they are due. So, it is with utter dismay that I declare that she receives my vote for the most honest, fair, and productive questioner in Judge Alito’s confirmation hearing.

As a matter of fact, I concur with the Alito Hearing Verbosity Index published over at Nihilist In Golf Pants which has all Democrats in the top 5 (it should be no surprise who they are and it should be no surprise that Kennedy and Biden are not amongst them). Indeed, I wish that all I had to do was listen to these five through the hearings. (Actually I read the transcripts and I stopped looking at everybody but Feinstein, Durbin, Feingold, and Kohl by day 3).

Let it also be know that the Republican Senators, love them as I do, could have just as well stayed home (with the possible exception of the chairman). I stopped reading their questioning after Day 2. What a waste. I have better things to go cross-eyed over than shameless cheerleading which, if things pan out as expected, was totally unnecessary to begin with.

Now, those of you here at Alas may disagree. You may have found the questioning of Sen. Kennedy more to your liking or the questioning of Sen. Schumer more incisive and damaging to the nominee. So be it. But as of now, I have a much greater appreciation for the Senator from California and may find occasion in the future to listen more closely to what she has to say.

A neatly dismissive phrase for a group of men who managed against all odds to set up a form of government that helped a group of 13 colonies become a great nation. I actually favor the preferences of the 18th century non-slave owners, who according to the references I’ve been able to find formed a majority at the Constitutional convention. There were some deep flaws in their work, the chief one (permitting slavery) for which this country paid with hundreds of thousands dead, millions wounded or displaced, lost human resources and spirit, and a division that lasted for generations. But flawed as it was, none the less it was a great accomplishment that has led to a nation that overall has led the fight for freedom and liberty in the world.

Surely I’ll now be pummeled with a list of all the U.S.’s missteps; the tyrranical regimes we’ve supported (another deep flaw, I’ll readily concede). You’re all right. But you know what? We’ve also spent huge amounts of money, time and lives to fight tyranny as well; first for our own benefit, and then all over the world.

It’s right to point out the mistakes that the U. S. has made. I’m no fan of upholding a tyrannical regime because it seems to be to our advantage. We should maintain our principles. But it’s important to remember that they are our principles, and that unlike most countries we actually expect to live up to them.

This will make some of you think of “my country, right or wrong”. But that’s a bit of a misquote. What the man said was, “Our country right or wrong. When right, to be kept right; when wrong, to be put right.” There is no question in my mind that there are many things to be put right in the U.S.; I suppose that you and I might disagree on what those things are. But at least we all get to argue that point; that’s something that the majority of people in the world either can’t do at all, or have great restrictions put on them.

Those 18th century men had the unique if imperfectly expressed idea that governments are only legitimate if they have the consent of the governed, and that said consent should not be restricted to a small nobility or aristocracy. Through trial and error, war and peace, this idea has expanded first in our own country and now across the world. This truly radical idea is so pervasive that even the worst despots pay lip service to it; and it’s modern genesis is here. I think there is much to be proud of in the work they did, and the progress that has come of it.

As far as Kelo goes, I understand that there are precedents closer to this decision that have passed muster. All I can say is that I don’t agree with those, either.

Rebecca, the core of your post seems to me to be:

So in the end no matter how you detail the *rules* of law, there’s going to be the hole. In the end, you have to rely on people to generate real-world actions from those rules. In the end you have to rely on how people think about the Constitution, the law, and how it all works.

Individual laws and documents such as the Constitution exist in the context of the greater fabric of law.

I have to say that this seems a bit metaphysical to me. I can’t quite get my fingers around it. I think that the authors of the Constitution had very specific ideas about what they meant when they wrote it. The best guide to that is the Federalist Papers, a series of some 80+ essays written about the Constitution written by 3 of it’s authors in New York papers in an effort to convince the voters of that state to adopt it.

Imagine a world where enough voters would read 80+ essays on a matter before the electorate to make it worthwhile for a paper to print them. How much have we really progressed?

In any case, it seems to me that any legislative body has some very specific intents when they write and pass laws, and those intents are spelled out in the laws themselves and in the legislative debates and hearings about them. To say that there’s a fabric to the law in which they are set and by which they must be interpreted seems to take away from the legislature’s intent. It seems like an appeal to a higher law, which the likes of Pat Robertson would love.

In any case, I think that such a thing puts too much power in the hands of the judiciary. Hell, I think that’s what happened with Kelo and the precedents that led up to it. Now, with a conservative majority that might work out in my favor in some cases. But I’ll concede away that advantage if it means that it doesn’t work to my detriment when a liberal court is seated. I’d rather take my chances with the legislature.

My political preferences; I think that the recognition of the rights of women is one of the things that will keep the U.S. pre-eminent in the world over countries that have the happy accident of sitting on top of resources we’ll pay well to use. Human capital always prevails over monetary capital; in the long run, the former generates the latter, but not vice versa. As long as countries push down the status of their women, they will never be able to join the modern world. As far as the rights of homosexuals go, I’m in favor of making sure the government has no right to discriminate against them, especially in such areas as housing, employment, etc. But you and I may differ on what other things constitute discrimination, or what rights the government has to discriminate against people and organizations who discriminate against homosexuals.

You and I have been having pretty much entirely seperate conversations with RonF (yours being the more interesting discussion, since mine is largely snarky argument, although mine has improved recently), so we haven’t really interacted, but I just wanted to mention that I love your most recent post.

Also, would the hole in the law count as a wogly? ;)

I am specifically thinking of a body of law that produces contradictions when you try to use it—so that judges really have no choice but to note hypocrisy.

I’ll respond to this and the rest of your post in more depth later. ^_^

Rebecca

RonF,

I'm going out of town for the weekend, so I won't be responding to anythign else until Tuesday.

I happened to run across this post about Kelo that I thought you might find interesting.

This is Sasha Volokh, who was involved in an early phase of arguing Kelo (long before it got to the SC).

The key part from my point of view is this:

Part of the problem with these eminent domain cases -- that is, our eminent domain cases, where we actually try and change the law -- is that you rarely win as broadly as you'd like to. IJ won an eminent domain case against Donald Trump, but the victory was on narrow grounds -- there's nothing wrong with taking private property for casino development, which is a public use if the legislature says it's a public use, but in this case the court wasn't sure it was really a public use because there were no guarantees (like covenants attached to the property) that the widow's house would really continue to be used for a casino parking lot.

Similarly, here, the New London Development Corporation, which lost because it only had speculative plans as to the plaintiffs' properties (not because taking property to give to private developers isn't a public use, not because the city gave excessive discretion to a private organization to decide whom to evict), has now decided that it can try to take the properties again, after making firmer plans with the Coast Guard to locate their museum there.

So here is one of the people who argued the case saying that having the courts set a bright-line on what is public use would be changing the law. Deciding that the legislature and local executives have huge flexibility to define public use is not changing the law. Deciding that indirect public benefit can legitimately fall within that definition, if the local legislature or executive say it does, is not changing the law. Saying that federal courts have the power to set a bright line definition of public use, and that that definition does not include indirect public use is changing the law (and if it included a bright line, then it would be legislating from the bench).

Also interesting is this comment in the update:

Third, Logan asks what my own view is, and argues that state constitutions and legislation, not judicial policy, should place limits on "public use," since "libertarian philosophy is based on the notion of limited government [interference], from all branches of [government, including the judicial branch].” My brief answer: A full discussion of what eminent domain is acceptable is a subject for another post. But at the very least, the concept of “public use” should be substantially tightened up, for instance, by requiring that any “public use” be in fact open to the public (this would allow for schools, roads, and courthouses, but not private housing, offices, or parking lots). As for who should set that policy, I don’t have much of a problem with courts deciding what a public use is. Libertarianism isn’t about reducing government “interference,” but about maximizing people’s rights; government interference in the form of striking down government actions that violate people’s rights may be pragmatically problematic (too much activism, even libertarian activism, may open the door to bad activism down the road) but not morally so.

So Sasha agrees that what he favors is judicial activism. I agree.

Oh, also, I realized the position I was mockingly arguing from was textualist (”where does it say the government can’t take for private gain, so long as due process is followed?”). However, there doesn’t seem to be a clear or meaningful distinction between the two. There is a Volokh post about Kelo that asks the exact same question I asked.

Also: fine, you don’t define Roe as progress, but you can’t help but define it as liberal, left-wing, or progressive. And anyway, that is a total side-steping of my obvious point. What was the last court action that you consider to be activist and liberal rather than activist and conservative? If you don’t count Roe, since it apparently isn’t progressive in your view, what does that leave?

And finally, Kelo wasn’t particularly precident setting. It basically reiterated Midkiff, a unanimous decision from 1984 favoring takings for public benefit (and written, and setting forth the position that public use is whatever the legislature says it is. From the above link:

2. The Act does not violate the “public use” requirement of the Fifth Amendment. Pp. 239-244.

(a) That requirement is coterminous with the scope of a sovereign’s police powers. This Court will not substitute its judgment for a legislature’s judgment as to what constitutes “public use” unless the use is palpably without reasonable foundation. Where the exercise of the eminent domain power is rationally related to a conceivable public purpose, a compensated taking is not prohibited by the Public Use Clause. Here, regulating oligopoly and the evils associated with it is a classic exercise of a State’s police powers, and redistribution of fees simple to reduce such evils is a rational exercise of the eminent domain power. Pp. 239-243.

(b) The mere fact that property taken outright by eminent domain is transferred in the first instance to private beneficiaries does not condemn that taking as having only a private purpose. Government does not itself have to use property to legitimate the taking; it is only the taking’s purpose, and not its mechanics, that must pass scrutiny under [467 U.S. 229, 231] the Public Use Clause. And the fact that a state legislature, and not Congress, made the public use determination does not mean that judicial deference is less appropriate. Pp. 243-244.

It is also not far off from Berman, from 1954, which allowed the seizure of “blighted areas” with no requirement that the land be publically owned or accessible afterwards. This was the basis for the wave of “redevelopment” in the 50’s through the 70’s.

Now, just to be clear, I think that New London should probably not have been allowed to seize the land, I think Midkiff was rightly decided, and I think that much of the redevlopment seizures of the 50-70’s were highly problematic because (as Thomas points out after a somewhat tortured originalist argument on the late 18th c meaning of public use) they disproportionatly were used against pooor and nonwhite people, and were frequently used to destroy entire nonwhite neighborhoods.

However, I just don’t see how any of those decisions were wrong from an originalist or a minimalist view point. The originalist arguement in this case seems weak (and I am no fan of originalist arguments in any case, as I simply don’t accept that we should be strictly guided by the preferences of late 18th c slave owners in how we structure our society or our government), and defering to the legislature is decidedly minimalist and certainly not activist.

That Aaron would prefer a court that returned to a pro-rich people, late 19th c interpretation of the pre-eminence of property rights, and that you’d like a court that didn’t recognize the rights of women or gays (or however you’d prefer to describe your political preferences, I realize that that is an unfair short-hand) I understand and accept. But that you pretend that you merely want an apolitical court that enforces the true meaning of the Constitution (which happens to correspond 90%+ of the time with your politics) is unconvincing and silly.

I have decided I should probably clarify my response to this. ^_^

There is a hole in the law.

Our basic ideas in how to understand and approach the law—how to think about the law, how to think about the Constitution, what it means to have a Constitution—aren’t spelled out in the edifice of law.

They can’t be.

So in the end no matter how you detail the *rules* of law, there’s going to be the hole. In the end, you have to rely on people to generate real-world actions from those rules. In the end you have to rely on how people think about the Constitution, the law, and how it all works.

That understanding isn’t simple.

So the way I think about that hole is that behind the ungainly words and statements of the law, there is a fabric—

Like the fabric of space/time in physics, or the genre of a novel.

Individual laws and documents such as the Constitution exist in the context of the greater fabric of law.

You’ve explained how Constitutional law works as a series of rules. But the thing is, those rules are meaningless if we don’t have the same understanding of the fabric of law behind them. Here’s what I mean. If I think of something as consonant with the law and you don’t, and a judge agrees with me, then you’d call that an action of the courts. I’d call it an action of law. Very little has been resolved!

So that’s why I described what you wrote here as essentially meaningless, except as an explanation of how you think. It’s full of ideas that only make sense once pinned to the fabric of law and the similar fabric of ethics—and as a whole it only *really* works if they’re pinned to fabrics that work very much like you think they must.

It should be pretty obvious that “precedent and the customs for using it” are part of that fabric, for example, as is the legacy of common law.

When I talk about rights that are not explicitly enumerated, it’s important to understand that I don’t mean somehow adding invisible amendments to the Constitution or invisible riders on laws or secret rules to hang on the wall of a judge’s club. I’m not talking on the same level as the documents of law at all. I’m talking about how I think the fabric of law needs to work to hold together and to accomplish the purposes of law.

I’m pretty sure that there are multiple valid ideas regarding what the fundamental purpose for law *is*, and also multiple valid ideas regarding what that purpose *should* be. But I’m not aware of any good studies for the first, and there’s no real authority for the second.

I’ve wondered about the use of penumbra. Is there a legal definition of that word, outside of it’s Roe vs. Wade context? I’m a bit of an amateur astronomer. A penumbra is the partial shadow cast onto one celestial body (e.g., the Earth) when another celestial body (e.g., the Moon) partically but not completely occludes light from a source (e.g., the Sun). The part of the shadow that’s completely dark is the umbra. Throwing it around in a decision like Roe vs. Wade seems pretty imprecise and questionable to me; but then, if there is a specific legal usage for it, I’d like to be informed.

“Perhaps we differ in that you think that the only rights we should have are those that a group of great and glorious wise men thought we should have 200+ years ago (not just the ones they wrote down, but also the implied penumbra), where I think the penumbra changes over time.”

Well, I don’t think that there’s such a thing as an implied penumbra, although again I’m willing to be educated on the use of that term.

No, we don’t differ in thinking that the only rights we should have are those written up by the framers of the Constitution. Where we may differ is in how any additional rights (or expansions of existing ones) should be accomplished. To my view, if something is a logical extension of an existing right (say, the right to blog, where the Constitution mentions only speech and the press), there should be a simple and logical means to get from point A to point B. No “penumbras” allowed. If it is not a simple logical extension of an existing right, then we should use the legal mechanism set up by the framers to change the law; either by Federal or State law or by amending the Constitution. The judiciary should have no role in creating new law.

“Instead, they used expansive and open language, capable of changing in its interpretation.”

That you would get a lot of argument about. This is part of the heart of the matter. Some want the courts to be blatantly conservative, but many want the courts to be “originalist” and narrow and throw controversy to the elected officials instead of appointed ones.

“Our constitution is extremely hard to modify (a bad choice on the framers part), so most of the flexibility has to come from the broad quality of most of the constitutional language.”

No, I think it’s a good choice. If it was easy to modify, it would be easy to take away unpopular rights (like the right to burn an American flag in protest, or practice the Islamic religion). New rights can be recognized by the legislature with little fear of contradiction from the Court. To say that the Courts have to do that because the legislature won’t is to set the judgement of 9 unelected and difficult to remove officials above the judgement of 535 elected and much more easily removed officials. The former may get you what you want, but beware when the tide turns, as it appears it’s about to.

“Again, finding the other way in Kelo requires an activist court, willing to substitute its own judgement of public use for the judgement of both the local legislature and the local executive.”

Actually, from my viewpoint, making the judgement that the objective of taking property from the private use of one owner and conveying it for the private use of another owner does not constitute public use is not judicial activism but a clear reading of the Constitution.

“What you would like is a court that would have legislated a bright line standard on the nature of public use (as the dissent suggested) that would forbid economic development as a public use goal. Instead, we have a slim majority that chose to defer legislation to the legislatures, and restrict itself only to the most egregious of violations.”

Well, they certainly did openly invite the legislatures to restrict such activity. But this is the first time that I’m aware that the Supreme Court defined “public use” as anything that the public in fact did not use. In Kelo, none of the property that was taken ended up owned by the public. None of it was used by the public, unless there’s a public park in there I’m not aware of and any public roads. That’s what got everyone up in arms. Absent the exceptions above, every bit of the property that was taken ended up owned by a private owner. The fact that this increased economic activity in the area is hopefully true but is not guaranteed - businesses do fail, after all, or leave when their tax incentives are used up. But since when is economic activity “public use”?

“In response to Kelo, multiple legislatures have passed clarifications that Kelo type takings are unacceptible in their domain. Surely this is exactly what you desire when the subject is not the expansion of property rights. Why is it that you want an activist court to legislate from the bench on the expansion of property rights?”

Because I’m not asking for the expansion of property rights. I’m asking for their maintenance as intended by the Constitution. Obviously, 5 justices disagreed with me. But I think they confused a public policy goal (increase economic activity) with a property right (private property ownership). The concept that the goal of the prospect of increased economic activity constitutes “public use” and overrides defined private property ownership is anathema to me, and to me is actually “judicial activism”.

“This is already a court that is very active in overturning legislation and setting new bright lines (legislation), so it is not a question of the court becoming less invasive.”

Ah, but I think Kelo was highly invasive; it gave the government a way to interfere with my property rights that very few people imagined that it had before.

“The court hasn’t done significant legislation from the bench in a progressive direction (Miranda, Roe, etc) in a very long time”

Ah, so you define Roe as progress? I beg to differ.

“but it has been overturning progressive legislation (VAWA components, ADA components, etc) for about a decade.”

I confess I don’t even know what VAWA is. Is that the “Violence Against Women Act”? What was done there?

“What we are about to see, and what you are clearly hoping for is that we will start getting right wing legislation from the bench shortly.”

No, I don’t want any legislation from the bench. Unless a particular case involves a violation of the clear language of the Constitution, I want the Court to say, “When the law was enacted, ‘x’ was intended; if you want a change, go to the legislature”

“Right wing goals like abolishing SSI will never be achieved through an elected legislature (as SSI is extremely popular, anyone who voted to abolish it would be out on their ear in the next election), but an activist right wing court could easily do so.”

Then I would not favor the Court (nor, in my case, the legislature) abolishing SSI.

“Fortunately, even with Alito, the court is only as right wing as Kennedy (which is far to the right of me, but not into nation destroying territory). As well as doing as much as we can to block the confirmation of Alito, we must hope that the other justices can survive for another 3 years.”

I think Alito will be confirmed, although Sen. Spector is going to put it off until the new year. We’ll see about the other justices.

It is at least a perception. It might be more than that, it might be reality, but at minimum the perception is sparking a particular reaction.

Granted. In fact, I’ll go further than ‘damaging’; I consider the elevation of ideology over judgment as a qualification for the higher courts an abomination against humanity, reason, and the law. So to this extent we have a point of agreement.

“If this is intended to convince rather than to illustrate, please let me know so I can explain why I feel this way. If you’re just explaining, then ignore this bit. ^_^”

I confess I’m not sure where you’re coming from, so let me rephrase a bit. The Constitution lists certain things as rights that the Federal government is bound to protect against encroachment. If something is not listed as such in the Constitution, then it’s in play as to whether or not that something is a right reserved either to the States to regulate, or whether it’s reserved to individual citizens to exercise without regulation at all.

“In terms of my opinions…there are some subtle issues of agency here, in that I think more in terms of ‘judicial action sometimes leads to the affirmation of rights’ than ‘we should affirm rights through judicial action.’”

“That is, I don’t currently advocate proactively seeking rights through the courts, but I do recognize that judicial action can change the legal and social landscape, and laud this, and I also recognize that this leads to the exact problem you note above and below. It’s a subtle point of intentionality that I’m mentioning mostly for clarity.”

I grant the distinction and appreciate the clarification.

“First, even apolitical judgment is still inherently a political statement. You can’t avoid that because the judge has no power to prevent people from recognizing, rejoining in, or suffering the political consequences of their rulings.”

Lack of action can be seen as action favoring the side whose agenda is furthered by said lack. But the justices have no choice; they either have to act, or not act. But the difference is, if the justices act according to their own political/social feelings, then the electorate has little recourse other than to try to get the legislature to impeach the justices. Whereas is the justices act according to a reasonably narrow viewpoint of the law alone, the electorate can pressure their legislature to change the law with a reasonable expectation that the law will hold up when the courts interpret them.
It is tempting these days to say that we are polarized, and are failing to accord much honor to our opposition. Examination of the political record of the Civil War and the McCarthy era, or even before, will refute this. But it is much easier to rally the troops through the Internet, etc., than it used to be. As far as one administration or another saying, “Enough, it’s time to end this”, part of the problem is that the present Administration explicitly ran on a platform plank of nominating “originalists” to the Supreme Court; justices who will construe the Constitution’s language as close to the writers’ intent as possible. Let the legislature do any expansion they may, not the justices. The other part is that while the left tends to say of the present court “It’s centrist”, whereas the right says, “It’s leftist”; the right thinks putting Alito in will bring it to the center, where the left thinks putting him in will bring it to the right. Or, at least, that’s their public positions.

The second problem is simpler. If the minority in your example is in the right, then we cannot neglect to ask: “What of the legislature and the executive?”

“… it is more valid, I think, to look at your example as a case of people under a potentially unconscionable burden realistically evaluating their potential hopes; and even more valid to imagine a case where the judiciary is in fact simply recognizing truths that the legislature and executive insist upon denying…that is, where the judiciary is not making law but recognizing and resolving a fundamental contradiction in the existing laws and practices.”

True. A lot of that depends on what’s in the law that may or may not be contradictory. For example, when laws that are racially discriminatory are struck down, the people who made the laws or favor them may cry “judicial activism”, but no one respects that because there are clear provisions in the Constitution that forbid this. But when the Supreme Court takes the right to regulate abortions away from the States, we have lasting controversy because there is nothing in the Constitution that clearly forbids this, and it appears that the Court’s decision was political rather than legal; that they fit their legal arguments to the desired end instead of vice versa.

Here I will list as an example the case I am most personally uncomfortable with that I think may have been correctly decided, which is the recent dismissal of a lawsuit offered by a woman who found that the police would not enforce the restraining order against her abuser.

I am not familiar with this case. Can you expand?

In like fashion, when I consider the civil rights advances made by judges, I can only imagine that, driven by the increasing awareness of the American population, they are able to recognize where the legislature and executive may not that some of the practices in law are hypocritical and contradictory in themselves, and that unless we are willing as a nation to write law that says, “Minority X is not people.” one cannot expect the judiciary in principle to uphold laws that on the one hand deny this and on the other assume it.

Again, though, in considering the progress of civil rights laws in the U.S., the 13th and 15th Amendments gave the Supreme Court justification in helping this advance, and then there was the action of the legislature in the Civil Rights Act of 1965. Racial equality isn’t something that the Supreme Court would be perceived of making up out of whole cloth.

“In summary, I have two points.”

“First, the more hypocritical the law, the more activist the judiciary.”

Granted - but then you get into judging whether or not a particular body of law is hypocritical.

“Second, I think that you’re projecting the weight and burden of the controversy entirely to the other side.”

“I’m going to explain that by example, …”

“The sense of ‘look how feminist progress has made the right view judges politically!’ feels to me like ‘look how you made that man hit you!’”

Yeah. Overall I’ll grant you that. Now consider what’s “progress”. Equal pay for equal work? Definitely! There’s a clear national consensus there. Equal pay for equivalent work? Hm. Now someone has to judge whether one particular job is as worthwhile as another. Some cases are clear, some not so. Abortion on demand? Many view that as regression, not progress, and an enormous controversy ensues, and you end up with our present situation.

Again, finding the other way in Kelo requires an activist court, willing to substitute its own judgement of public use for the judgement of both the local legislature and the local executive.

What you would like is a court that would have legislated a bright line standard on the nature of public use (as the dissent suggested) that would forbid economic development as a public use goal. Instead, we have a slim majority that chose to defer legislation to the legislatures, and restrict itself only to the most egregious of violations.

In response to Kelo, multiple legislatures have passed clarifications that Kelo type takings are unacceptible in their domain. Surely this is exactly what you desire when the subject is not the expansion of property rights. Why is it that you want an activist court to legislate from the bench on the expansion of property rights?

This is already a court that is very active in overturning legislation and setting new bright lines (legislation), so it is not a question of the court becoming less invasive. The court hasn’t done significant legislation from the bench in a progressive direction (Miranda, Roe, etc) in a very long time, but it has been overturning progressive legislation (VAWA components, ADA components, etc) for about a decade. What we are about to see, and what you are clearly hoping for is that we will start getting right wing legislation from the bench shortly. Right wing goals like abolishing SSI will never be achieved through an elected legislature (as SSI is extremely popular, anyone who voted to abolish it would be out on their ear in the next election), but an activist right wing court could easily do so.

Fortunately, even with Alito, the court is only as right wing as Kennedy (which is far to the right of me, but not into nation destroying territory). As well as doing as much as we can to block the confirmation of Alito, we must hope that the other justices can survive for another 3 years.

With reference to Kelo, it seems to me the appropriate part of the Constitution is:

nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

You are quite right in that the text here does not explictly forbid the taking of private property by the government for private use. In my view, however, that’s most likely because such an idea was too far-fetched for the framers of the Constitution to consider that they had to spell it out.

One of the major purposes of the Constitution is to sharply limit the power of the Federal government, and by later extension to all governmental bodies. If the Constitution does not specifically state “the government can do X”, then the presumption is that the government CANNOT do X. On that basis, since nothing in the Constitution says that the government can take private property for private use, they can’t do it.

The Supreme Court recognized this. This is why what the Supreme Court did not justify Kelo by saying that the government had a simple right to convey private property from one owner to another; they did not rule that the government has a right to take private property for private use. They instead justified Kelo by saying that since the governmental body had a specific development plan that was well thought out and was applied equally to all within it’s juristiction, and that the end result was believed by that body as benefiting the public as a whole through increasing tax revenue and creating jobs, the taking qualified as “public use”. That’s what everyone I’ve talked to found repugnant. That’s the kind of thing that the founders of this country took up arms against.

The Supreme Court ruled that the ends justified the means.

Okay. I will attempt to interpret accordingly. ^_^

> In my lifetime, it seems to me and to many other people that some
> courts, and especially the Supreme Court, have taken it
> upon themselves to not only interpret the law, but to make new law,
> to force the law to mean things that either the legislature was
> silent on or that they explicitly opposed.

Can we agree that this is inherently a continuum, and accordingly the question is not so much procedural as a matter of degree and, more importantly, perception?

> That in turn invites damaging long-run actions; in this case,
> politicizing the courts to such an extent that new justices
> will be expected to legislate, and to do so in such a fashion as the
> electorate or their elected representative favor.

Granted. In fact, I’ll go further than ‘damaging’; I consider the elevation of ideology over judgment as a qualification for the higher courts an abomination against humanity, reason, and the law. So to this extent we have a point of agreement.

> However, no one has a right to expect that a behavior or activity
> that is not enumerated in the Constitution will be recognized
> as a basic human right and will not be able to be forbidden or
> regulated by a governmental body. What makes something
> reservable as a right in this country is the law, not the courts, and
> not the opinion of a minority that such a thing should be a right.

Let me observe here that I consider this essentially meaningless as a point of argument, although it’s useful in understanding where you’re coming from. If this is intended to convince rather than to illustrate, please let me know so I can explain why I feel this way. If you’re just explaining, then ignore this bit. ^_^

> It seems to me the thinking for those who support such judicial
> acts may be that “X should be a basic right. Since we
> haven’t been able to get the legislature to act, and since this is
> so unjust (justice delayed is justice denied), we should get this
> right via judicial action.”

I can’t really speak for others.

In terms of my opinions—there are some subtle issues of agency here, in that I think more in terms of “judicial action sometimes leads to the affirmation of rights” than “we should affirm rights through judicial action.”

That is, I don’t currently advocate proactively seeking rights through the courts, but I do recognize that judicial action can change the legal and social landscape, and laud this, and I also recognize that this leads to the exact problem you note above and below. It’s a subtle point of intentionality that I’m mentioning mostly for clarity.

> They may be right, and the majority may well be wrong. That’s not
> my point. My point is that by taking this action, you open up the
> Supreme Court to be subject to politicization.

Yes.

And no.

The problem is twofold.

First, even apolitical judgment is still inherently a political statement. You can’t avoid that because the judge has no power to prevent people from recognizing, rejoining in, or suffering the political consequences of their rulings.

In this respect, I believe that, all other qualifications being equal, a conservative will always recognize as “greater in judgment” a conservative and a liberal will always recognize as “greater in judgment” a liberal. The only question is how *much* honor we as a society are willing to allow those who disagree with us. In this regard the politicization of judges is not a single event but a constant, ongoing process in which the positive qualities of those judges opposite us in the political spectrum are devalued. In this respect we cannot consider the administration innocent, for there is little indication that they have done due diligence in this regard, that they have sought to scour the scales from their eyes and choose those whom, for all their disagreements, they must nevertheless respect as giants. This politicization is also a characteristic of the left in this situation—I am certainly personally less inclined to imagine Mr. Alito as an intellectual giant, given what I know of the political implications of his rulings and dissents. But even in the context of this polarization we must recognize that the context and agenda for this discussion is set by the administration and that for this reason in a very real sense it is fair on its face to tell them, “You should probably be the ones to take the first step in taking ideology off the table.” (Nor do I begrudge this argument to conservatives in a liberal administration.)

The second problem is simpler. If the minority in your example is in the right, then we cannot neglect to ask: “What of the legislature and the executive?”

Because it is tempting to cast this in the light of a desperate minority who, like a mistreated wolf, savages anything in its path on the route to freedom; but it is more valid, I think, to look at your example as a case of people under a potentially unconscionable burden realistically evaluating their potential hopes; and even more valid to imagine a case where the judiciary is in fact simply recognizing truths that the legislature and executive insist upon denying—that is, where the judiciary is not making law but recognizing and resolving a fundamental contradiction in the existing laws and practices. It is the function of the judiciary, when the law says that wives may not be beaten, to observe, “in this regard, the edifices of society and history that encourage such things are no longer acceptable.” In like fashion, it is the precise function of the judiciary, when confronted with a structure of law inconsistent in itself—such as the great body of law that insists upon equality for all American citizens and the great body of law that nevertheless insists upon codifying as inherent inequalities that are not—to resolve it, in a fashion that will inevitably and without obvious recourse appear as political, creative, and denouncable as activist.

Here I will list as an example the case I am most personally uncomfortable with that I think may have been correctly decided, which is the recent dismissal of a lawsuit offered by a woman who found that the police would not enforce the restraining order against her abuser. This is insanely political. It is destructive rather than creative, which is arguably a weakness in my example. It is certainly activist in effect. Yet it is also nothing more than a recognition of existing practices in law: the court had only to observe that restraining orders are just pieces of paper and that the law as yet equivocates over whether to assert a victim’s right to avoid harm for which they have forewarning. I am not sure whether I agree with the ruling, because I am not a lawyer, but it is one that I can imagine as properly motivated in the due course of a judge’s duty.

In like fashion, when I consider the civil rights advances made by judges, I can only imagine that, driven by the increasing awareness of the American population, they are able to recognize where the legislature and executive may not that some of the practices in law are hypocritical and contradictory in themselves, and that unless we are willing as a nation to write law that says, “Minority X is not people.” one cannot expect the judiciary in principle to uphold laws that on the one hand deny this and on the other assume it.

In summary, I have two points.

First, the more hypocritical the law, the more activist the judiciary.

Second, I think that you’re projecting the weight and burden of the controversy entirely to the other side.

I’m going to explain that by example, because every time I try to explain it from first principles it winds up really long. It might wind up objectionable, in which case, please recognize that I’m summarizing and emoting:

The sense of “look how feminist progress has made the right view judges politically!” feels to me like “look how you made that man hit you!”

Rebecca

Interpreting the Constitution requires making decisions on what is undue, on what is unreasonable. Those sorts of decisions are not culture free. Justice Thomas, as a black man, has a better understanding of whether a reasonable black person would interpret a cross being burned in their neighborhood as a direct threat, or simply as a political expression of a dislike for black people, than a white Justice does. Likewise, Judge Alito takes a very narrow view of what constitutes an undue burden in making abortion decisions, one on which a female justice might be less likely to agree. You would be comfortable with a SC composed entirely of white men. Would you also be comfortable with a SC composed entirely of conservative Shia religious scholars? I think that you might find that their definitons of reasonable, undue, and cruel and unusual might not match with your own.

Again, with reference to Kelo, what in the Constitution explicitly allows the SC to, as you desire, overturn the decision of a local government as to what constitutes “public use.” The constitution explicitly requires that property only be seized through due process, and that it be paid for if seized for public use. It does not say that it can only be seized for public use. Perhaps you find that somewhere in the penumbra, but you do not find it in the text.

The President obviously has the duty to nominate justices. However, the Senate has the duty to advise and consent (and to withhold consent) in the appointment of the justices. If the president refuses to nominate candidates that are acceptible to the Senate, then the president’s nominees will languish.

True. This is why there is a vote.

The supreme court is perfectly capable of operating with eight justices (and SDO has agreed to remain on the bench until her replacement is appointed, so we don’t even face that circumstance), so there would be no fundamental crisis if the Democratic minority rejected each and every justice that the Presidnet sent forward.

LOL… I bet you would like that, wouldn’t you? And if a Republican won in 2008, stall awhile longer until you can get a Democrat in there and approve his nominees. Nothing like hijacking Senate responsibilities.

Fact is that the American people are sadly out of touch with what SCOTUS, and indeed the entire judiciary, is about. Somehow the majority of people believe that the Judges need to represent them, the American people, and therefore need to be diverse with many varying opinions, religions, races, etc. My question is, since when? Congress represents the people. The Courts are there to apply the Constitution to the cases, not represent the people.

I want a judge who will look at his job as a SCJ through those lenses and see his responsiblities through the perspective of what is in the Constitution and not what they want to be in the Constitution. Stuff like “penumbra” decisions are my litmus test. Not whether the judge is a woman, or favors gay marriage.