1010Re: [prezveepsenator] Supreme Court justice calls his own decision unwise
- Aug 25, 2005the eminent domain law really bothers me.. it seems
like the perfect issue for Democrats to be rallying
--- Greg Cannon <gregcannon1@...> wrote:
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
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
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
The court's press office made the text of his speech
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
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
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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