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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."
Leeron:
So you're stating that Stevens followed the law and established precedent, even though he disagreed with it.
8.25.2005 12:10pm
bill-10k (mail) (www):
Blind umpire, can't see the pitch, can't read the rule book.

Why is this guy a judge, even I can read and understand the fifth Amendment.
8.25.2005 12:19pm
Aultimer:
Isn't our system beautiful? A little old man makes clear that he can separate his job from his opinion. Thousands on both (far) ends of the spectrum will be outraged, and the rest of us, as always, will go on trusting that our country will usually do well by us all.
8.25.2005 12:20pm
Robert Schwartz (mail):
More evidence, as if any more were needed, that it is time to enact term limts and upper age limits on SCOTUS justices.
8.25.2005 12:35pm
Ted (mail) (www):
What struck me (and what I mentioned at pointoflaw.com) was Greenhouse's claim that Stevens is the only justice to talk about this, when it's a standard talking point in Scalia's speeches. It also struck me that Greenhouse wondered whether Roberts could follow suit instead of noting that he has explicitly noted this issue in his writings, his congressional testimony, and his Hudspeth opinion. It also struck me that she chose to cite opinions by O'Connor and Kennedy rather than, say, Thomas's dissent in Lawrence.
8.25.2005 12:37pm
Bryan DB:
R. Schwartz,
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!
8.25.2005 12:37pm
Gabriel Rossman (www):
ted,
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.)
8.25.2005 12:47pm
guest1243 (www):
Ted-
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.
8.25.2005 12:53pm
Anderson (mail) (www):
What nasty remarks about Stevens! They tell me nothing about him but all too much about the commenters, I'm afraid.

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.
8.25.2005 12:58pm
SeanT (www):
"I have no hesitation in telling you that I agree with the policy choice made by the millions of California voters," he said. But given the broader stakes for the power of Congress to regulate commerce, he added, "our duty to uphold the application of the federal statute was pellucidly clear."

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).
8.25.2005 1:12pm
Gordon (mail):
Even though I disagree with the decisions in both Kelo and Raich on constitutional law grounds, I commend Justice Stevens for following the law instead of trying to twist it to suit his policy preferences.

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.
8.25.2005 1:20pm
Shelby (mail):
I'm glad to see Stevens acknowledge the primacy of law over his personal opinion (whether he does so sincerely or not). That doesn't oblige me to agree with him or Anderson that these results were compelled by law or precedent, especially if the precedent is misguided.

I wonder if there's any way to use this as a jumping-off point for questioning Roberts in the nomination hearings.
8.25.2005 1:22pm
sammler (mail) (www):
Well, if Mr. Roberts is asked about this during confirmation hearings, he will probably say something anodyne like "Well, I am glad to hear Mr. Stevens distinguish between his personal opinions and the necessities of law." Not much will be learned.

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.
8.25.2005 1:38pm
Larry (mail) (www):
Anderson is right. The comments indicate that the commenters are more partisan than analytical.

But, one of the angry commenters, like, bill-10k, was quite funny:


Why is this guy a judge, even I can read and understand the fifth Amendment.



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.
8.25.2005 1:41pm
Anderson (mail) (www):
Sammler, I would rather not name particular commenters, but I am very skeptical that Stevens could be "senile" without its becoming gravely apparent at a speech like the one in question.

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.
8.25.2005 1:53pm
Robert Ayers (mail):
I would be interesting in hearing, from Stevens and the rest of the majority of Gonzales, a list of transactions that they do NOT think fall under the commerce clause.
8.25.2005 2:00pm
Cecilius:
Larry:

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.
8.25.2005 2:09pm
WHerndon (mail):
Consider me suspicious of Stevens' mea cul-, um, I mean, his remarks. I am quite curious why he seems to be going out of his way to defend his decision in both cases while at the same time trying to repudiate the outcome. I suspect Stevens saw the backlash against his rulings, which were unpopular with many liberals, and wanted to say: Really, it's not my fault. The Constitution made me do it.

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.
8.25.2005 2:12pm
BruceB (mail):
The thing is, Kelo was not correctly decided. On the contrary, as has been ably demonstrated elsewhere (including the dissenting opinions), Kelo goes against at least 200 years of takings clause jurisprudence. Either Stevens is being disingenuous or he is senile.
8.25.2005 2:29pm
juris imprudent (mail):
This isn't as mysterious as many might think. Stevens may indeed dislike the particular outcomes, but he is truly loath to put a leash on the power of the state in these arenas. THAT is the real policy preference he held to over the law.

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.
8.25.2005 2:30pm
Gordon (mail):
The Raich decision seems to be perfectly justifiable if you are willing to discount the Lopez and Morrison decisions. Before that the Supreme Court handed down almost 60 years of opinions giving seemingly unlimited power to Congress under the Commerce Clause. And since Stevens dissented from both Lopez and Morrison, he is hardly inconsistent. I happen to think the Lopez and Morrison (and SWANCC) provide a welcome curb on Commerce Clause power, but the contrary opinion certainly is not unarguable.

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.
8.25.2005 2:37pm
Gordon (mail):
BruceB: Actually, Kelo is a quite consistent extension of the opinions in Berman (1954) and Midkiff (1982). I believe that the Court should have distinguished Kelo from these two cases because they involved using eminent domain to combat existing blight (Berman) or eliminate near-feudalistic land ownership conditions (Midkiff), whereas Kelo involved no claim that the existing property owners were slumlords or land barons or anything else other than in the way. But the counter argument, that this decision is merely an extension of historical takings clause case law, is pretty strong.
8.25.2005 2:43pm
Larry (mail):
Cecilius, It is quite nice for an outside observer to say "I dislike the outcome" but when the Supreme Court, who is in almost complete control of how the constitution should be interpreted, I have never seen anyone claim that they interpreted it correctly, even though they didn't like the outcome. Usually people use a bunch of weasel words like "intent of the framers" or "moral authority" or "history of the constitution" to explain why their preference is the proper interpretation of the constitution. Trust me.

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.
8.25.2005 3:17pm
trotsky (mail):
I'm not even sure why this is getting so much attention. Didn't the majority's opinion in Raich quite explicitly mourn the decision's effects and call on Congress and/or the FDA to fix the law in question?
8.25.2005 3:54pm
Bob (mail):
For those who think Kelo went too far, do you think Midkiff went too far? As far as I can tell, the only principle in Midkiff is that owning "too much" land makes it subject to seizure. Wonderful for liberals, since it's a flexible and ever-changing bar. Don't like the Wal-Marts in your area? Seize one because WM owns "too much" land in your area.
8.25.2005 4:08pm
Vijay (mail):
Gordon: Raich isn't necessarily inconsistent with Lopez and Morrison. See Scalia's concurrence. Lopez and Morrison dealt with regulation of activity that substantially effected commerce and turned on whether that activity was economic or non-economic in nature. Raich, though ostensibly decided in a similar vein, relies on Congress' power under the necessary and proper clause to regulate activity that is part of a comprehensive regulatory scheme.
8.25.2005 4:51pm
arbitraryaardvark (mail) (www):
Larry: 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.

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.
8.25.2005 5:03pm
Gordon (mail):
Vijay, now that you bring up Scalia's concurrence in Raich, I have my suspicisions that his decision may, unfortunately, be tainted by his right-of-center politics. I think his concurrence engages in some hair-splitting to come to its conclusion.

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.
8.25.2005 5:06pm
42USC1983 (mail):
Vark, that's the biggest tease of a comment I've ever read. Please, do tell more...
8.25.2005 5:09pm
BruceB (mail):
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. While certainly not a guarantee, when everyone else is saying that you are wrong, there is a good chance that you are. As George Costanza might say, "It's not you, it's me."
8.25.2005 5:13pm
Jack S. (mail) (www):
Midkiff was not exactly about 'owning' too much as land, but correcting a distorted product of a prior feudal system.

Beginning in the early 1800's, Hawaiian leaders and American settlers repeatedly attempted to divide the lands of the kingdom among the crown, the chiefs, and the common people. These efforts proved largely unsuccessful, however, and the land remained in the hands of a few. In the mid-1960's, after extensive hearings, the Hawaii Legislature discovered that, while the State and Federal Governments owned almost 49% of the State's land, another 47% was in the hands of only 72 private landowners. Hawaii Housing Authority v. Midkiff 467 U.S. 229, 232

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).
8.25.2005 5:16pm
David Berke:
Am I the only person who reads here, and finds blank statements like:

"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.
8.25.2005 7:23pm
TrialDog:
I find the efforts to treat the Midkiff case as benign quite interesting. I agree with Bob - and don't really see a grounds for distinction on the basis that in Midkiff it was a feudal system they were correcting, and in the WalMart case (in Vermont, 2046), they find that the old system resulted in 49% of the groceries sold in the state were by a single retailer. So they decided to force the corporation to sell to the general manager if he asked the state to do so.

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???
8.25.2005 7:53pm
Gordon (mail):
Trial Dog: That genie came out the bottle long ago, in 19th Century cases finding that common carriers such as railroads and utilities, though privately owned, constituted a "public" use. A Dallas Cowboys statdium would most likely find similar favor.

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 ..."
8.25.2005 8:21pm
Gene Vilensky (mail) (www):
A question about Kelo...

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.
8.26.2005 12:58am
Jack S. (mail) (www):
TrialDog : using that kind of reasoning suggests there's already a case to do a taking on Microsoft Corp.. There's a difference between 'market' ownership, and tangible property ownership.

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.
8.26.2005 9:59am
Cecilius:
Larry,
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.
8.26.2005 1:34pm
Cynicus Prime (mail) (www):
Sounds to me like Stevens doesn't want the people in his hometown to petition an eminent domain seizure of his property like they're doing with Souter's place. Wuss.
8.26.2005 9:46pm