Washington The country is bracing for a bruising battle over filling a Supreme Court vacancy, a battle in which conservatives will praise "judicial restraint" and "deference" to popularly elected branches of government and liberals will praise judicial activism in defense of individual rights. But consider what the court did Thursday.
Most conservatives hoped that, in the most important case the court would decide this term, judicial activism would put a leash on popularly elected local governments and would pull courts more deeply into American governance in order to protect the rights of individuals. On Thursday, conservatives were disappointed.
The case came from New London, Conn., where the city government, like all governments, wants more revenues and has empowered a private entity, the New London Development Corp., to exercise the awesome power of eminent domain. It has done so to condemn an unblighted working-class neighborhood in order to give the space to private developers whose condominiums, luxury hotel and private offices would pay more taxes than do the owners of the condemned homes and businesses.
The question answered Thursday was: Can government profit by seizing the property of people of modest means and giving it to wealthy people who can pay more taxes than can be extracted from the original owners? The court answered yes.
The Fifth Amendment says, among other things, "nor shall private property be taken for public use, without just compensation" (emphasis added). All state constitutions echo the Constitution's Framers by stipulating that takings must be for "public use." The Framers, who weighed their words, clearly intended the adjective "public" to circumscribe government's power: Government should take private property only to create things - roads, bridges, parks, public buildings - directly owned or primarily used by the general public.
Fighting eviction from homes some of them had lived in all their lives, the New London owners appealed to Connecticut's Supreme Court, which ruled 4-3 against them. On Thursday, they lost again. The U.S. Supreme Court issued a 5-4 ruling that drains the phrase "public use" of its clearly intended function of denying to government an untrammeled power to dispossess individuals of their most precious property - their homes and businesses.
During oral arguments in February, Justice Antonin Scalia distilled the essence of New London's brazen claim: "You can take from A and give to B if B pays more taxes?" On Thursday, the court said that the modifier "public" in the phrase "public use" does not modify government power at all. That is the logic of the opinion written by Justice John Paul Stevens and joined by justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer.
In a tart dissent, Justice Sandra Day O'Connor, joined by Chief Justice William Rehnquist, Justice Scalia and Justice Clarence Thomas, noted that the consequences of this decision "will not be random." She says it is "likely" - a considerable understatement - that the beneficiaries of the decision will be people "with disproportionate influence and power in the political process, including large corporations and development firms."
Those on the receiving end of the life-shattering power that the court has validated will almost always be individuals of modest means. So this liberal decision - it augments government power to aggrandize itself by bulldozing individuals' interests - favors muscular economic battalions at the expense of society's little platoons, such as homeowners and the neighborhoods they comprise.
Dissenting separately, Justice Thomas noted the common law origins and clearly restrictive purpose of the Framers' "public use" requirement. And responding to the majority's dictum that the court should not "second guess" the New London city government's "considered judgment" about what constitutes seizing property for "public use," he said: A court owes "no deference" to a legislature's or city government's self-interested reinterpretation of the phrase "public use," a notably explicit clause of the Bill of Rights, any more than a court owes deference to a legislature's determination of what constitutes a "reasonable" search of a home.
Liberalism triumphed Thursday. Government became radically unlimited in seizing the very kinds of private property that should guarantee individuals a sphere of autonomy against government.
Conservatives should be reminded to be careful what they wish for. Their often-reflexive rhetoric praises "judicial restraint" and deference to - it sometimes seems - almost unleashable powers of the elected branches of governments. However, in the debate about the proper role of the judiciary in American democracy, conservatives who dogmatically preach a populist creed of deference to majoritarianism will thereby abandon, or at least radically restrict, the judiciary's indispensable role in limiting government.