So, Ruth Bader Ginzburg, formerly of an organization considered to be “liberal”(the ACLU), voted WITH Scalia, Thomas Rehnquist, and Sandra Day O’connor, did she?
That would make 5 votes AGAINST greater eminent domain powers, not FOR.
And as to the question of Sarpy County Planner Ken Tex’ professional association ties, the Omaha World-Herald reports that he does not belong to AICP.
Knowing what I know of the bastards that run things here (Republicans,Democrats;no significant difference–all are no good) it didn’t surprise me that their “professional” really isn’t one.
Seems like we need more than 4 categories then, beause if this is “right process”, there really isn’t much to complain about.
I can’t for the life of me understand why so many folks on this board don’t get that fundamental idea. The only conclusion I can draw is that they are willing to trust the justices to rule in their favor more often than not.
Because it’s more rhetorical bullshit, that’s why. This isn’t a case of a activist court, it’s a case of too much judicial restraint. Read the fucking opinion, including Kennedy’s concurrence. The judiciary in this case bent over backwards to defer to the legislature, which is precisely what Bricker wants to happen in every case, (well, every case except the ones he disagrees with). Then he comes in and pretends a idiotic turn of a phrase is valid criticism. It’s hypocritical bullshit. Just like Scalia’s disregard for originalism in Nollan and Lucas.
Then he, and you, show up here and try and paint the decision as some kind of out of control judiciary. It’s complete and utter bullshit and I, for one, am sick of it. The crap about Dred Scott being a substantive due process case, or that this case is judicial activism is just plain bullshit!
::deep breath::
Now that I have my ranting done, I’ll just say I beg to differ with your position, John.
I read it, including the dissenting opinion. As Justice O’Conner said in the dissenting opinion (my emphasis of the part I particularly take issue with):
When the justices can alter the very wording of the constitution at will, what “control” are they under?
But the thing is, many of us do “get that fundamental idea,” but we also judge the particular outcomes outside of a legalistic contect.
Bricker is correct that i was happy with the result of Lawrence v. Texas etc., and that i’m now unhappy with this decision. But my happiness and my unhappiness have nothing to do with whether the Supreme Court is being consistent, or with whether or not they are following a particular mode of constitutional interpretation. My concern is whether or not i think the outcome is a good one.
I’m not saying that the question of Supreme Court authority and interpretation are trivial, or that they don’t deserve debate. But the problem is that, sage and learned as they may be, the Supreme Court justices are also human, and are a part of the political process. You could probably count on the fingers of both hands the number of people in America who care more about the process than the actual outcomes in these cases (OK, i’m being hyperbolic). For the vast majority of Americans, including politicians who should know better, the key to identifying an “activist” judge is determining whether or not the outcome is one that you like. This is one big political football, and when people on both sides are measuring the process by outcomes rather than the internal consistency of the process itself, then for many of us who have little influence on the process, it often seems that all we can do is hope that the outcomes are the ones we want.
Is this an ideal situation? Surely not. I guess the only redeeming feature—if you can call it that—is that the game is being played by people on all sides of the political spectrum. I just get a little annoyed when it’s those on the left/liberal side of the spectrum who are most often occused of inconsistency or hypocrisy in such cases, when as far as i can see there are plenty of conservatives who adopt a similar results-based attitude to Supreme Court decisions.
Also, as Hamlet suggests, there are plenty of people in this country who push a political agenda under the guise of disinterested legalism. They actually pretend (whether to themselves or just to the outside world) that the process is all-important, but seem in many cases to interpret the process in ways that hew suspiciously close to their particular political leanings. If there’s something worse in politics than naked partisanship, it’s partisanship trying to dress itself up as neutrality or objectivity.
And that shows the TRUE EVIL of this decision, that a CLEAR MAJORITY of Justices voted against it yet were overruled by CCMPAC (Corrupt City Manager Political Action Committee–everybody has a PAC these days)!
Hmmmm, I coulda swored she voted against it… (taking a deep breath and melding my mind with my spirit guide, a Stalinist from Greenwich Village, who will help me justify anything) She no doubt realized that, though it was odiferous, one hundred years of precedent did support it so she, like her fellows on the Court, held her nose while voting in favor of the decision.
For some reason I’m taken with a desire to smoke pot and talk about what will happen when the Revolution comes while Miles Davis plays in the background.
Justice O’Connor also wrote the majority opinion in Midkiff (one of the precedential cases), and, in this case, specifically rejected the original intent determination that apparently comes so easily to Bricker by saying:
She goes on to say, almost precisely, what I said: that the majority was too deferential to the legislature. If you read her entire opinion, it’s pretty clear that her ruling has nothing to do with an out of control judiciary or an abandonment of original intent, and rather with too much deference by the judiciary to the acts of the legislative branch. Put another way: SHE AGREES WITH ME!!
Yet more rhetorical fluff. I’ll point out, once again, that this case is not a redefinition of “public use”. It very well may be an expansion of what is required to be a “public purpose”, but it does not “alter the very wording of the constitution.”
Thanks. I have nothing against you, but I’m sick and tired of every judicial ruling that someone doesn’t like being laid at the feet of “judicial activists” or non-originalists.
I find that very confusing. You judge a *legal *decision outside of a legalistic context? Why?
That sounds like you’re saying two wrongs make a right.
Yes, people on both sides play this game. I just think it’s possible to sidestep both the liberals and the coservatives who do it. I don’t want to put words in your your mouth, but are you saying it isn’t? I, for one, was just as quick to condemn Scalia for his ruling on the medicinal marijuana case.
I agree 100%. But what I take issue with is the assumption that if some, even most, people do it that all people do it.
Because, contrary to what some people would like to believe, these are political decisions as well as legal decisions. It’s just not possible to completely separate these two areas. The Court isn’t considered a branch of the government for nothing, and even if it should ideally be above the fray of partisan politics, even people with the best of intentions often allow their politics to impinge on other decisions that they make. So, for people concerned with the political impact of the Supreme Court decisions on the way that Americans live, focusing on outcomes probably seems like a not-unreasonable thing to do.
No. I’m simply saying that, given the difficulty of changing the situation (after all, we as voters don’t get to nominate Supreme Court justices, nor do we get to vote them out), and the fact that political biases have influenced Supreme Court decisions through much of the nation’s history, it’s understandable that people cross their fingers and hope for the decision that fits most closely with their political views.
Well, i’ll take these two paragraphs together, because they’re related. I do believe that it’s possible to make a genuine, good-faith attempt to sidestep the political issues and look purely at the legal questions. The problem, it seems to me, is that many folks who do this adopt a different kind of problematic standpoint—they assume that, because they are making a genuine attempt to deal with the legal issues, their own interpretation is the only one that might be correct. There is too little willingness to concede, in many instances, that even with the best of intentions people might disagree on certain interpretations or legal conclusions. That is, much as some people don’t want to admit it, even this legalistic debate is, itself, fraught with questions of politics and interpretation.
I’m not trying to make an assertion here that everyone is equally qualified to judge these things, or that all interpretations are equally valid. Some are, in my opinion, better than others. But it seems to me that many people who focus on the process also make an attempt to pretend that, by doing so, they are somehow stepping above the realm of politics and personal predispositions. I would argue that, rather than stepping above the politics, they have merely stepped sideways into a place where politics and personal predispositions are cloaked in a different set of debates.
I have touched on this from time to time, and, while I do not pretend to speak for mhendo I will at least give you my take on this.
It is my belief that the Law is nothing more than a flawed human mechanism that is reaching for the Good. As a (I hope) morally developed human I have an internal map of the Good. So, when a criticism leveled at “you guys” a la Bricker because I cheer decisions that I agree with and complain about those that I do not, generally my reaction is to say “yeah? So what?”
All that this tells me is that in some cases the Law succeeds at more closely emulating the Good, and at other times it fails. It really is a question of perspective and priority. Some people, I fear, see the Law as an end to itself and at the end of the day are happy as long as it is internally consistent, no matter the outcome. Others, myself included, see the Law as an institution that is having an ongoing dialog with the people that it should be serving, and do not value it for its own sake. So, there really is no conflict in my mind in viewing a legal decision in a context outside of the Law because, at the end of the day, the Law should not be serving itself in a self-referential way. It should be reaching for The Good, and serving the people.
Article for a local perspective can be found here. I found this part rather interesting:
(emphasis mine)
Looks to me like he’s saying that if the gov’t siezes your land, and gives it a developer, who then, instead of building the office complex, decides to build a private golf course, that’s A-Ok.
Given the amount of outrage I’m seeing on the various boards I go to, and commentary on NPR ("The Supreme Court has ruled that cities can take your land. "), it looks to me like this thing could get very ugly very soon.
That may be your feeling, but it’s not the reality.
Textualism and strict constructionism don’t lend themselves very well to a “I’ll decide this how I want to” approach. They are limited in what they can do. “The Living Constitution,” on the other hand, leaves judges much freer to decide things however they wish to.
I didn’t mean to imply that O’Conner was writing in defense of originalism or textualism. I know she doesn’t adhere strictly to either (unless it suits here purpose ). But you don’t have to be an originalist to be alarmed when a phrase is “interpreted” so outlandishly that it might as well not even be there anymore. I believe this to be the case here, and in the medicinal marijuana case, too.
How is “deleting the words” (as per O’Conner) different in any meaningful way from “alter the very wording”?
Same here.
Well, it’s a good thing I haven’t done that, then!
On a different massage board I like to frequent I have had to endure how liberals love this decision. Well, despite my reasoned arguments that it isn’t true I would like to be more concrete. Does anyone know of any commentary by traditionally liberal sources either for or against theis decision?
But who decides where reasonable interpretation ends and “outlandishness” begins? There are apparently a bunch of people who have ostensibly the same attitude to constitutional interpretation in theory, and yet who still arrive at different conclusions in different cases.
But, I believe you are mischaracterizing those of us who take a different approach. We do beilieve that the law is meant to serve the people, and that it’s not an end in itself. But, we believe that the legislature, elected by the people, must be the source of the law if it is indeed to serve the people. If there was no mechanism other than the courts to change the law, I might agree with you.
The ongoing dialogue, as you put it, goes on between the people and the elected officials who serve them.
To be clear, I don’t fear a wild-eyed Supreme Court declaring Bush dictator for life, or ruling that private property in all forms is null and void. But I resent, in a “who the fuck do you think you are” kind of way, when they go outside the clear meaning of the constitution to tell us what that document means. After all, the power of judicial review is something the SC took upon itself-- it was not given that power in the constitution.
We the people, will decide what “the Good” is, not the justices. They need to decide what the law is.
