Restrain Yourself

The VC links to a really interesting story regarding the controversial Kelo and Raich cases (eminent domain and medical marijuana, respectively).

Addressing a bar association meeting in Las Vegas, Justice Stevens dissected several of the recent term's decisions, including his own majority opinions in two of the term's most prominent cases. The outcomes were "unwise," he said, but "in each I was convinced that the law compelled a result that I would have opposed if I were a legislator."

In one, the eminent domain case that became the term's most controversial decision, he said that his majority opinion that upheld the government's "taking" of private homes for a commercial development in New London, Conn., brought about a result "entirely divorced from my judgment concerning the wisdom of the program" that was under constitutional attack.

His own view, Justice Stevens told the Clark County Bar Association, was 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." But he said that the planned development fit the definition of "public use" that, in his view, the Constitution permitted for the exercise of eminent domain.

Justice Stevens said he also regretted having to rule in favor of the federal government's ability to enforce its narcotics laws and thus trump California's medical marijuana initiative. "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."

A liberal judge voting against his policy preferences? Why, why, that's impossible! They're all activists--every last one of them.

And so it seems that some righties can't get there heads around the fact that Stevens might actually believe the law binds him to this particular result. Mike Rappaport, for example, says "give me a break" and thinks Stevens merely wants to deflect criticism from his role in an unpopular decision (why an 85 year old man with life tenure on the nation's highest court would be so concerned about self image goes unstated). What causes his immediate dismissal of the simple explanation--that Stevens actually believes what he says? Easy--"It is only judges who follow the [originalist] approach that are significantly restrained by the law." (Ethan Leib also weighs in on Rappaport's post).

Not that we're too self-assured or anything. I think it's abundantly clear that judges who are manifestly committed to an originalist understanding are quite capable of acting with reckless abandon (Scalia's opinion in Division of Employment v. Smith, anyone?). And of course, any principle worth its salt will restrain a judge from doing something he might otherwise like to do--I'm skeptical that devout Catholic Anthony Kennedy is a huge fan of sodomy, yet somehow he found the jurisprudential basis to realize the constitution "neither knows nor tolerates classes amongst citizens."

Other people are more sanguine. Helvidius thinks that it is probably true in at least some cases that Stevens really is voting against what he believes is "right," but posits that every judge has a "breaking point" at which time s/he ceases to interpret the constitution and instead searches for a rationale to justify the result s/he deems necessary. This is probably true to an extent--though of course it applies to all judges, not just liberals. PG of De Novo also hits on this--noting that Scalia's "duty" to protect criminal defendants from illegal processes seems to magically disappear once they've been convicted. Where do it go? But unlike Helvidius, PG is not so quick to label Scalia as giving in to mere "desire." That seems reasonable to me--there are many ways of interpreting the constitution, and I'm not so self-assured in my own method to tar those with opposing methods as being fundamentally ideological. Wrong, perhaps, but not deliberately so.

In any event, while I dislike the notion of judges deciding cases on partisan whim, I am far less alarmed at the supposed epidemic of activism than some of my peers. Frankly, I've seen no evidence that any judge on the Supreme Court consistently subverts constitutional interpretation to naked political desire. So Stevens' statement comes not as a shock or tragic exception, but as the way things are.