Commentary: A Few for the Right Wing By PAUL GLUSMAN

Tuesday June 28, 2005

Once in a while, the right—at least in the judiciary—gets it right. Many of my friends who follow the United States Supreme Court are used to rooting for the “progressives” (actually a coalition of moderates and mildly liberal judges—the ones who endeared themselves to us by not signing on to the Bush coup in 2000—Justices John Paul Stevens, Ruth Bader Ginsburg, David Souter and Stephen Breyer) against the conservatives—Chief Justice William Rehnquist and Justices Clarence Thomas and Antonin Scalia. The two swing votes, pretty conservative themselves, are Justices Anthony Kennedy and Sandra Day O’Connor. 

On June 23, the court decided a land use case, Kelo v. City of New London. To put in perspective what was at issue, suppose the collective wisdom of the Berkeley mayor’s office and the Berkeley City Council decides that residents of our community aren’t being given enough opportunity to purchase coffee, and that another coffee house from a privately owned mega-chain—let’s call it “Moondollars”—should go up right where your house is standing. Suppose the city claimed that this was in furtherance of its development plan to enhance the urban environment, produce more jobs, and bring much-needed tourist dollars into the city. (The meeting at which the plan was approved was posted for 24 hours on a lamppost three blocks from where you live in six-point type next to the tear-off ad for a cleaning service and the reward poster for a lost cat.) 

Suppose further that the city condemns your house, so the coffee shop can be built. Of course, you are entitled to compensation for your real property, but considering you didn’t want to sell in the first place, you kind of like your house which has been in your family since 1920, and (for some strange reason) haven’t entirely bought in to the reasoning behind the decision of the city fathers and mothers to condemn it. Thus you object to being forced out of your home to accommodate a rich, influential corporation. 

This is the issue that was presented in Kelo. In New London, Conn., the city condemned housing in order to turn over private land to private businesses, under an integrated development plan designed to “revitalize its ailing economy.” The homeowners protested, arguing that the Fifth Amendment to the U.S. Constitution only authorized seizing private land for public purposes. In this case Pfizer Pharmaceuticals was the main beneficiary of this reverse robin-hood redistribution of the wealth. 

The court held, by a 5-4 majority, that this was just fine. Of course, it long has been the law that the government could take your home if it paid just compensation, as long as the taking was for a public purpose, say to build a road, expand a park, or construct a new state office building. But now the high court has approved taking private property in order to give it to a more influential property owner, as long as the government can create the necessary record to justify it in terms of revitalizing the economy, removing blight, or producing jobs. One doesn’t have to be a total cynic to believe that the seizing government entity wouldn’t have much trouble creating such a paper trail. The Kelo opinion holds that courts shouldn’t second-guess a governmental determination of what is a public benefit. 

The kicker here is that the majority consisted of the progressives. Stevens wrote the opinion, joined by Souter, Breyer and Ginsburg. Justice Anthony Kennedy joined them with a concurring opinion, providing the 5-4 majority. 

Sandra Day O’Connor dissented, joined by the normally troglodyte trilogy of Thomas, Scalia and Rehnquist, stating that the majority decision would favor those with disproportionate influence and power in the political process including large corporations and development firms. Thomas also pointed out, as had the NAACP, that redevelopment often meant displacement of minorities, the elderly and the poor. 

A few weeks ago the Supreme Court, in the case of Gonzalez v. Raich, held that the federal government’s ban on marijuana overrode California law which allows for medical use. The federal law had been challenged by Raich—who claimed that marijuana was the only substance she could use to alleviate her illness—as an unwarranted extension of the federal government’s powers under the interstate commerce clause of the U.S. Constitution. The court said that medicinal pot use did affect interstate commerce. While growing weed in the back yard to ease your mother’s cancer pain does affect interstate commerce, earlier cases have held that carrying guns near schools and violence against women doesn’t affect interstate commerce. Legal scholars will have a field day writing learned treatises distinguishing one case from another here. It may be important that two of the dissenters, O’Connor and Rehnquist, themselves suffer from or have suffered from, cancer. Once again the liberals, joined by Scalia and Kennedy showed up on the wrong side. Of those voting to uphold the federal law, Ginsburg has suffered from cancer. 

In other news Congress has ratified the nomination of California Supreme Court Justice Janice Rogers Brown to the District of Columbia Court of Appeals. Progressive groups have justifiably condemned many of her decisions as being beholden to powerful interests and in favor of religious extremism—“pro-life” on parental consent, pro-death on death penalty cases. However, even she occasionally has made good calls on cases. For example, in the Hagberg case—which I wrote about in these pages some months ago—which made it impossible for victims of maliciously false reports to the police to sue the persons who make the reports, Brown wrote the dissent, arguing that victims of such reports will have arrest records and never be able to clear their names other than through a lawsuit. 

A few years ago, in the Aguilar v. Avis Rent-a-Car case, the California Supreme Court dangerously upheld an injunction against speech based on its content, ignoring decades of U.S. Supreme court jurisprudence that prior-restraints on speech were unconstitutional. In Aguilar the speech prohibited was racist speech in the workplace. Such speech, even before Aguilar, could be penalized after the fact based on fair employment laws. Employees subjected to such speech in the workplace could sue under the California Fair Employment and Housing Act, or federal Title VII. Aguilar went farther and upheld a pre-speech injunction regulating content. Brown dissented, stating that this sort of determination that a court disliked certain speech, thus forbidding anyone from saying it was the exception that could swallow the free speech guarantees of the First Amendment.  

Many in the progressive legal community hailed the Aguilar decision and derided Brown for her dissent. This is short-sighted. The current government hasn’t manifested a great reverence for other constitutional guarantees, such as the right to trial, the right to counsel, and the right to be free from cruel and unusual punishment. The progressive legal community should not applaud precedents that will allow this or any government to curtail the right to free speech, even if they detest the speech forbidden in a particular case. Such acquiescence in curtailment of liberties will come back to bite them. 

So, if you keep score on what the courts are doing in our country, it is important to analyze what’s going on in a case by case basis. Just because a judge is considered a “liberal” doesn’t mean that judge will make a good decision, and just because that judge is conservative doesn’t mean the judge is not committed to preserving fundamental liberties.›