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1010Re: [prezveepsenator] Supreme Court justice calls his own decision unwise

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  • THOMAS JOHNSON
    Aug 25, 2005
    • 0 Attachment
      the eminent domain law really bothers me.. it seems
      like the perfect issue for Democrats to be rallying
      around

      --- Greg Cannon <gregcannon1@...> wrote:


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      http://www.nytimes.com/2005/08/25/politics/25memo.html?th&emc=th

      Justice Weighs Desire v. Duty (Duty Prevails)

      By LINDA GREENHOUSE
      Published: August 25, 2005

      WASHINGTON, Aug. 24 - It is not every day that a
      Supreme Court justice calls his own decisions unwise.
      But with unusual candor, Justice John Paul Stevens did
      that last week in a speech in which he explored the
      gap that sometimes lies between a judge's desire and
      duty.

      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."

      The court's press office made the text of his speech
      available here.

      While the substance of his remarks was interesting, so
      was the timing. The 85-year-old Justice Stevens, who
      will observe his 30th anniversary on the court this
      fall, is a savvy observer of the political landscape.
      It certainly did not escape his notice that Supreme
      Court confirmation hearings were looming and that a
      microscopic examination of the views of the nominee,
      Judge John G. Roberts Jr., was under way.

      Perhaps Justice Stevens intended a gentle reminder
      that no matter what views Judge Roberts held as a
      young lawyer in the Reagan White House, the real
      question was one that only the nominee could answer:
      not what views he holds today, but the impact he would
      permit those views to have on his work as a Supreme
      Court justice.

      While Justice Stevens is the only member of the court
      to have addressed the issue in a speech, others have
      used their written opinions to acknowledge the
      conflict between a judge's policy preferences and
      decisions the judge may feel forced to render because
      of legal precedent or judicial philosophy.

      In March, for example, Justice Sandra Day O'Connor,
      whom Judge Roberts would succeed, dissented from the
      court's opinion that declared unconstitutional the
      execution of those who commit capital murder before
      the age of 18.

      "Were my office that of a legislator, rather than a
      judge, then I, too, would be inclined to support
      legislation setting a minimum age of 18," Justice
      O'Connor wrote in her dissenting opinion in Roper v.
      Simmons in the course of explaining why, in her view,
      the Constitution did not support that outcome.

      Justice Anthony M. Kennedy, in providing a fifth vote
      for the court's 1989 decision that burning an American
      flag as a political protest is protected by the First
      Amendment, noted that the decision "exacts its
      personal toll." In his concurring opinion in the case,
      Texas v. Johnson, Justice Kennedy wrote: "The hard
      fact is that sometimes we must make decisions we do
      not like. We make them because they are right, right
      in the sense that the law and the Constitution, as we
      see them, compel the result. And so great is our
      commitment to the process that, except in the rare
      case, we do not pause to express distaste for the
      result, perhaps for fear of undermining a valued
      principle that dictates the decision."

      For a justice on the speaking circuit, Justice Stevens
      gives unusually good value. Rather than retreating to
      the safety of historical anecdotes or constitutional
      platitudes, as some others do, he often talks about
      what is actually on his mind. This month, he went to
      the American Bar Association's annual meeting in his
      home city, Chicago, and offered some pointed criticism
      of the death penalty.

      Sometimes, of course, justices and other judges
      express themselves at their peril, as Justice Antonin
      Scalia learned after criticizing an appeals court
      decision that barred the recitation of the Pledge of
      Allegiance in public school classrooms. He was obliged
      to recuse himself a few months later when the case
      reached the Supreme Court.

      On the other hand, Justice Scalia's more abstract
      discussion of his jurisprudence, in a book titled "A
      Matter of Interpretation," has proved a steady seller
      since its publication in 1997.

      Next month, his colleague and occasional debating
      partner, Justice Stephen G. Breyer, will offer his own
      very different views of constitutional interpretation
      in a new book titled "Active Liberty: Interpreting Our
      Democratic Constitution."

      Justice Breyer's book is based on the Tanner Lectures
      on Human Values, which he delivered last year at
      Harvard. Justice Scalia's book was based on his
      lectures in the same series, which he delivered at
      Princeton in 1995.


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