Justice Weighs Desire v. Duty (Duty Prevails)

NYT reported 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 duty. 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."

Well in the case of Kelo you certainly were wrong, but why don't you resign from the bench and run for the legislature, where you can vote what you think is right.

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 domain.

But the public were not going to use the land in Kelo; it was to go to a private development area. And exactly what "law" required you to overrule what the Constitution says? This may be news to Justice Stevens, but I thought that all Supreme Court Justices were told this on the first day, but the Constitution superceeds a law, not the other way around.

Dr. Steven Taylor: blogged While I wholly appreciate that a Justice should not be supplanting the law with his or her opinion, it seems to me that the very definition of “public use” was what was at issue, and that it is most difficult to look at the Takings Clause and come to the conclusion that Stevens reached.... As such, I am not so impressed with Stevens’ argument that judicial restraint made him do it.