Breyer Restraint

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JULY 11, 2005

Breyer Restraint

The Supreme Court term that ended this week managed to infuriate
both liberals and conservatives. In particular, the Court's
decisions upholding some displays of the Ten Commandments but not
others and allowing New London, Connecticut, to seize private homes
in an effort to promote economic development were attacked by
critics on both sides of the political spectrum for exalting
pragmatism over constitutional principle. But, in fact, both sets
of decisions were defensible in constitutional as well as practical
terms. They represented an admirable recognition that the Court
governs best when it governs least.It's easy to sympathize with those who instinctively question the
harsh result in the property rights case, Kelo v. New London. A 5-4
majority allowed the New London City Council to use eminent
domain--a government's right to seize property in its jurisdiction
so long as it provides just compensation--to take nine homes from
their owners in order to develop office buildings to complement a
nearby pharmaceutical research facility that the city believes will
create jobs. Many citizens, understandably, view this outcome as
unfair. Nevertheless, defenders of judicial restraint, particularly
liberals, should applaud the Court's refusal to second-guess the
economic judgments of city and state legislatures. Had the Court
come out the other way, as libertarian supporters of the so-called
Constitution in Exile urged it to do, the decision would have
unleashed a torrent of judicial activism that might have called
into question everything from local zoning ordinances to
environmental laws.

The appropriate response to the unfairness inherent in individual
cases involving eminent domain is political, not judicial. This
week, Senator John Cornyn of Texas introduced the Protection of
Homes, Small Businesses, and Private Property Act of 2005, which
would prohibit any government--state, local, or federal--that
accepts federal funds for a development project from using eminent
domain to promote economic growth. A bill like this might help to
discourage eminent domain abuse--that is, condemnation of private
homes for private profit--without asking judges to second-guess the
economic decisions of legislators, a task for which they are
notoriously ill-equipped.

The Ten Commandments decisions were similarly farsighted. By a 5-4
vote, the Court struck down displays of the Ten Commandments in two
Kentucky courthouses, holding that the exhibits lacked a legitimate
secular purpose since they had been installed to acknowledge the
Bible as Kentucky's "precedent legal code." By contrast, a
different 5-4 majority upheld Texas's tacky display of a huge Ten
Commandments tablet outside the state capitol, since it had been
sponsored by Cecil B. DeMille to promote his movie The Ten
Commandments. The swing justice who joined both majorities was
Stephen Breyer, who noted convincingly in his concurring opinion in
the Texas case that religious displays can convey different
messages in different contexts. Breyer also recognized that
striking down all public displays of the Ten Commandments, as some
extreme secularists demanded, might "create the very kind of
religiously based divisiveness" that the Constitution seeks to
avoid.

The Court's moderate performance is all the more striking when
contrasted with the position of the most radical dissenting
justice, Clarence Thomas. In the eminent domain and Ten
Commandments cases, Thomas offered a highly questionable
interpretation of the Constitution and urged the Court to overturn
decades of its own precedents. If Thomas's view had prevailed, the
states would no longer be required to respect constitutional
prohibitions on the establishment of religion. And limits on
judicial power over economic regulations that have prevailed since
the New Deal would be dramatically altered.

In the event that Chief Justice William H. Rehnquist resigns,
resisting a justice in Thomas's image should be the central focus
of Senate Democrats. A Gallup poll released this week suggests that
a narrow majority of Americans believe that President Bush should
choose a consensus candidate for the Court if Democrats object to
his first choice. Less than half, by contrast, believe that Bush
should stand by his first choice if the nominee proves to be
controversial. This suggests that the majority of Americans are
relatively happy with the broad direction of the Supreme Court,
even when they question the results in individual cases. The wise
decisions this week were a reminder of why the pragmatic Court has
earned the public's confidence by generally deferring to the
political branches. Now it's time for a more ideological Congress
to rise to the occasion.

By the Editors

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