Saturday, April 10, 2010

The Retirement of Justice Stevens

From my view the retirement of Justice Stevens is none too soon.  Two decisions where he took a significant role are indicative of why I think he stayed too long.  The first is the 2000 decision on the election (Gore v. Bush).   In what was one of the most contentious elections in history, the Supreme Court was pulled into opining on how to count ballots.  That came about from a number of factors.  But it was incumbent that the court see its role in a narrow focus.  One of the reasons the decision came down in per curiam format was that most members of the Court recognized the very uncomfortable position that the lawyers and politicians had put them in.   There were lots of alternatives that could have extended the discussion on how to solve the election, but the Court (in my opinion rightly) concluded that the extension of the conflict was not good for the country.  It may have been the same logic that Steven's nominator (Gerald Ford) may have used to pardon Richard Nixon.

But Justice Stevens thought it was his role to throw oil on the fire.    Stevens' said in part  "Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

He also transformed his philosophy from the Bakke case - where he was a strong opponent of affirmative action to the Grutter case where he became a supporter.  I tend to prefer justices who reason from stable principles, even if I disagree with those principles.

In 2005 Stevens penned the majority decision in the Kelo case - where he affirmed the right of New London Connecticut to take land from private land owners and redistribute it to another private land owner, Pfizer Corporation, for their private purposes but with the shoddy underlying rationale that the taking would somehow improve the economic situation of the city.   Justice O'Conner wrote a stinging rebuke of Stevens' opinion when she said (in part) 
Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.
Her conclusion, was that Stevens' decision eliminated obliterated the effectiveness of the Takings Clause in the Fifth Amendment by eliminating any distinction between public and private use.
Clarence Thomas in his dissent was even clearer.

This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a 'public use.'

The folly of Stevens' reasoning on the case came as the deal eventually blew up.  The City of New London had no new jobs and the middle class homeowners still had their property stolen by judicial edict.

Stevens may have had the longest tenure on the court but a good deal of his role has been to support encroachments of government power often without restraint.   The notion that the Constitution is "what I say it is" is nonsense.   The Court should be above politics but increasingly Stevens seems to have missed that point.

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