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  • From: "Marie McHarry" <mmcharry AT dtnspeed.net>
  • To: <homestead AT lists.ibiblio.org>
  • Subject: [Homestead] An article cheering the Supremes
  • Date: Fri, 1 Jul 2005 01:01:38 -0500

As most of you who will read this know, I'm more than a little queasy about
the Supreme's ruling on eminent domain. Just to add a bit to the other side
of the argument, I submit this article (printed in full because TNR now has
most of its material available only to subscribers):

Breyer Restraint
by the Editors


The Supreme Court term that ended this week managed to infuriate both
liberals and conservatives. In particular, the Court's decisions upholding
some displays of the Ten Commandments but not others and allowing New
London, Connecticut, to seize private homes in an effort to promote economic
development were attacked by critics on both sides of the political spectrum
for exalting pragmatism over constitutional principle. But, in fact, both
sets of decisions were defensible in constitutional as well as practical
terms. They represented an admirable recognition that the Court governs best
when it governs least.

It's easy to sympathize with those who instinctively question the harsh
result in the property rights case, Kelo v. New London. A 5-4 majority
allowed the New London City Council to use eminent domain--a government's
right to seize property in its jurisdiction so long as it provides just
compensation--to take nine homes from their owners in order to develop
office buildings to complement a nearby pharmaceutical research facility
that the city believes will create jobs. Many citizens, understandably, view
this outcome as unfair. Nevertheless, defenders of judicial restraint,
particularly liberals, should applaud the Court's refusal to second-guess
the economic judgments of city and state legislatures. Had the Court come
out the other way, as libertarian supporters of the so-called Constitution
in Exile urged it to do, the decision would have unleashed a torrent of
judicial activism that might have called into question everything from local
zoning ordinances to environmental laws.

The appropriate response to the unfairness inherent in individual cases
involving eminent domain is political, not judicial. This week, Senator John
Cornyn of Texas introduced the Protection of Homes, Small Businesses, and
Private Property Act of 2005, which would prohibit any government--state,
local, or federal--that accepts federal funds for a development project from
using eminent domain to promote economic growth. A bill like this might help
to discourage eminent domain abuse--that is, condemnation of private homes
for private profit--without asking judges to second-guess the economic
decisions of legislators, a task for which they are notoriously
ill-equipped.

The Ten Commandments decisions were similarly farsighted. By a 5-4 vote, the
Court struck down displays of the Ten Commandments in two Kentucky
courthouses, holding that the exhibits lacked a legitimate secular purpose
since they had been installed to acknowledge the Bible as Kentucky's
"precedent legal code." By contrast, a different 5-4 majority upheld Texas's
tacky display of a huge Ten Commandments tablet outside the state capitol,
since it had been sponsored by Cecil B. DeMille to promote his movie The Ten
Commandments. The swing justice who joined both majorities was Stephen
Breyer, who noted convincingly in his concurring opinion in the Texas case
that religious displays can convey different messages in different contexts.
Breyer also recognized that striking down all public displays of the Ten
Commandments, as some extreme secularists demanded, might "create the very
kind of religiously based divisiveness" that the Constitution seeks to
avoid.

The Court's moderate performance is all the more striking when contrasted
with the position of the most radical dissenting justice, Clarence Thomas.
In the eminent domain and Ten Commandments cases, Thomas offered a highly
questionable interpretation of the Constitution and urged the Court to
overturn decades of its own precedents. If Thomas's view had prevailed, the
states would no longer be required to respect constitutional prohibitions on
the establishment of religion. And limits on judicial power over economic
regulations that have prevailed since the New Deal would be dramatically
altered.

In the event that Chief Justice William H. Rehnquist resigns, resisting a
justice in Thomas's image should be the central focus of Senate Democrats. A
Gallup poll released this week suggests that a narrow majority of Americans
believe that President Bush should choose a consensus candidate for the
Court if Democrats object to his first choice. Less than half, by contrast,
believe that Bush should stand by his first choice if the nominee proves to
be controversial. This suggests that the majority of Americans are
relatively happy with the broad direction of the Supreme Court, even when
they question the results in individual cases. The wise decisions this week
were a reminder of why the pragmatic Court has earned the public's
confidence by generally deferring to the political branches. Now it's time
for a more ideological Congress to rise to the occasion.

the Editors






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