The Volokh Conspiracy

I find it very hard to take Rauch seriously (even though many of the points he makes are pretty valid, if not to say largely borrowed from Mark Tushnet's recent book) when he repeats - twice, no less - the claim that Kelo was not unconscionable judicial activism. Jon writes:

There it went again, that activist Court, trampling on the democratic process, legislating from the bench. Except that it had done no such thing. In the New London case, the Court pointedly deferred to the political branches of government, ruling that it had no business second-guessing Connecticut's elected officials. Conservative property-rights advocates were upset, it appeared, because the Court did not legislate from the bench.

What bothered me about Kelo - and I've not been shy to say as much (see various comments here and here) - is fairly similar to what bothered me about the ludicrous New York Times suggestion (see comments here) that it is the Court's conservative block that are the "judicial activists".

Jon asks us to by into the idea that all the court did was defer to the legislature; implicitly, that makes the decision "reasonable" rather than "activist". This again falsely conflates "action" with "activism"; the court cannot be activist simply by adhering to the constitution. By contrast, it cannot be anything else if it defers to the legislature by creating legislative authority where none existed. One can be activist not only by taking action where none is required, but by refusing to take action when it IS required.

I imagine Jon would be less latitudinarian about the establishment clause than he is about the public use clause. The only point, it seems to me, in placing a right in the constitution is to take it off the democratic stage. Isn't that why liberals want Roe upheld, after all? Because something that's in the Constitution is off the democratic stage? (Obviously these are not entirely comparable situations, insofar as the public use clause actually exists in the constitution, while the right to an abortion doesn't). Thus, it seems to me that the whole point of the public use clause in the Constitution has been short-circuited by Kelo; if the court places back into the normal political arena the question of whether or not to invade a right, for all intents and purposes, it deletes that right from the Constitution. That is exactly what Justice Stevens did in Kelo, and for that precise reason, the case was wrongly decided.

It could reasonably suggested that, although the taking itself is not for public use, the second-degree earnings anticipated to accrue from that taking may be put to public use. But even if we buy into that, what limit would it place on the excercise of emminent domain? What is the protection which shows Justice Thomas to be wrong in saying that "if such 'economic development' takings are for a 'public use', any taking is, and the Court has erased the Public Use Clause from our Constitution"? Again - if the court robs a clause of all meaningful (or, intelligible - cf. Blakely) content, for all intents and purposes, it deletes that right from the Constitution. That is exactly what Justice Stevens did in Kelo, and for that reason too, the case was wrongly decided.

I respectfully dissent.

In a 1997 decision (affirming a 1990 holding), the Court said no, with four conservatives voting against the religious exception, and two, Breyer and O'Connor, voting for it.

I'd like to be charitable and assume this part of the article was a misprint , but I don't see how it could have been.

I caught the Breyer thing too. It was odd seeing O'Connor and Kennedy being treated as solid conservatives who occasionally vote with the liberals, but that sort of cleared up why he would think such a thing. If Breyer's a conservative, then Kennedy and O'Connor clearly are solid conservatives. Of course, that would make Ginsburg, Souter, and Stevens right-leaning moderates.

TD019:

What your definition boils down to, I think, is that if you disagree, it's activism.

This is a self-fulfilling prophecy. If a person's opposed to judicial activism, then isn't it rather unlikely that they'll be able to find a case which had an activist result which they agreed with?


Jeremy:

Of course, that would make Ginsburg, Souter, and Stevens right-leaning moderates.

Don't you read TIME magazine, my friend? There are no liberals on the Supreme Court. TIME's SCOTUS special recently depicted a photo of the court, labelling Scalia a "staunch conservative" (bet staunch conservatives loved his opinion in BMW v. Gore), Thomas a "staunch conservative" (bet staunch conservatives loved his opinion in Raich), and Breyer, Souter and Ginsberg as "moderates". I suppose it could be considered a "point of view", but as Scott Adams put it a few years back, "when did ignorance become a point of view"?

What worries - and yet, amuses - me, is that I think liberals honestly think that Breyer and Ginsberg were necessary compromises. So when they demand a compromise candidate, what they mean is, a compromise between the inane wing of the Democratic party, and the insane wing of the Democratic party. Or, in other words, Justice John Kerry.

I find most of the commentary here beside the point. The purpose of Rauch's article was not define judicial activism -- a definition with which I also have problems. It was to explain why no great revisionism is likely on a court with more Republican selections.

And the reason is because conservatives are split into at least three camps (and that's not even including libertarians such as Glen Reynolds.) I found his article compelling. Fair, informative, insightful, explanatory. The sort of journalism rarely to be found these days.

Sure, there were a few mistakes. I am sure Rauch knows that Breyer is not a conservative. (Though he is the most 'conservative' of the 'lberal' justices). Overall, however, I thoroughly enjoyed the article. Beats almost anything I've seen in the big dailies.