Anthony Kennedy on abortion: steady as Jell-O

This fall the U.S. Supreme Court will be tackling partial birth abortion again. Two cases overturning the Partial Birth Abortion Ban Act of 2003 will get a final hearing, and we’ll get to see where our two newest Justices stand on abortion. SCOTUSblog has posted a summary of what’s in dispute. I dug up the published opinions from both Courts of Appeals, so you don’t have to rely on the mainstream media to tell you what’s in them (both are Adobe PDF files):

8th Circuit:
Gonzales v. Carhart
9th Circuit:
Gonzales v. Planned Parenthood
(Kook Warning: this is a Judge Reinhardt opinion!)

Here’s the conventional wisdom on who supports the ban on partial birth abortions:

SCOTUS vote prediction

Kennedy is the wild card here. While he’s pro-abortion in general, he joined the conservatives in the Court’s first crack at partial-birth abortion (too bad there were only three plus Kennedy, because they lost):

The Court’s decision today, in my submission, repudiates this understanding by invalidating a statute advancing critical state interests, even though the law denies no woman the right to choose an abortion and places no undue burden upon the right. The legislation is well within the State’s competence to enact.

Justice Kennedy, dissenting
Stenberg v. Carhart

Kennedy’s dissent encourages pro-lifers and hints that he might join the conservatives again this time around. Unfortunately, it was also written six years ago. Kennedy has been sliding steadily leftward during his tenure on the Court, and it’s anybody’s guess how much “evolving” or “growing” he’s done since 2000. With Justice Sandra Day O’Connor’s retirement, he has assumed the role of the swing voter, and that kind of power is very seductive to any Justice with no discernable judicial philosophy.
There’s plenty of reason to worry. In an abortion case eight years before he confronted partial-birth abortion, Kennedy penned this doozy:

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

The man’s unpredictable. He overturned a state constitutional amendment denying special rights for homosexuals because he deemed it “inexplicable by anything but animus.” Magic 8-ballHe overturned an anti-sodomy law. He agreed with Justice Scalia that juveniles should be eligible for the death penalty … but then he flip-flopped. He opposed the McCain/Feingold muzzle on free speech. He supported government redistribution of private property. He opposed a federal anti-gun-possession law. He supported ending the Florida recount in the 2000 presidential election. He upheld Oregon’s institution of doctor-assisted suicide.
Enough! My brain hurts. If anyone can assemble Kennedy’s opinions into a coherent judicial philosophy, it’ll be news to me. For all we know he uses a ouija board to help him decide.
So will Anthony Kennedy object to infanticide again? I can’t shake the sinking feeling that it all depends on how much his wife values those cocktail party invitations from Washington’s liberal “in crowd.”

More reaction to Kelo

Don’t miss Michelle Malkin’s survey of the Kelo blogstorm.
Glenn Reynolds rounds up some great commentary on property rights, all posted since yesterday’s decision in the Kelo case. I found Zach Wendling’s idea scary but fascinating: he suggests using environmental laws and regulations to protect your land from developers.
George Will distills the gigantic problem the Supreme Court dumped on us yesterday:

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.

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.

If you’re still looking for more, one nice way to track who’s saying what about Kelo is N.Z. Bear’s topic page on the case. Plus, there’s Google News and Technorati.

UPDATE: This post about Zimbabwe isn’t actually a reaction to the Kelo ruling, but it does demonstrate what happens when a nation guts the concept of private property rights.
UPDATE 2: Ever wondered what you can look forward to after this outrageous ruling? Wonder no more.
UPDATE 3: Pros and Cons predicts many communities will see a rise in homelessness, a spike in government subsidized housing residents, and a drop in the number of low-income workers available to employers.
Meanwhile, Wizbang’s Jay Tea tiptoes through the Bill of Rights in a property rights retrospective.
UPDATE 4: Lawrence White at Division of Labour predicts more empty big box shopping centers and strip malls, thanks to Kelo‘s anti-competitive side effects.
I think we might be able to contract around the problem.
UPDATE 5: Eric’s Grumbles Before The Grave has a good roundup, including a Canadian’s perspective.

Contracting around Kelo

Here we are in Day Two of life without property rights, thanks to the U.S. Supreme Court’s ruling yesterday in Kelo v. New London. Five unelected lawyers have decided that contrary to any rational reading of the Takings Clause of the Fifth Amendment, a local government can use its eminent domain power to take your land, pay you a pittance “just compensation”, then turn around and sell the land to someone who makes fat campaign donations to another private party that the government thinks will engage in a nice “public use” of your land … in other words, in some way that’s hyped as creating jobs, generating more property tax revenue, or helping economic development.
Since we can’t rely on the plain language of the Constitution anymore to keep the government’s grubby paws away from our property, what can we do? As a temporary measure, maybe we can contract around the Kelo problem.
Let’s say that you own some attractive real estate that your local government wants to take from you through eminent domain. To foil their plans you enter into a contract with the state government, where in exchange for a fee, the state automatically takes title to your property if your municipal or county government ever attempts to condemn it, and you get to live on the land. Perhaps it could be set up as a trust with the state as trustee.
Anyway, since a local government doesn’t have the authority to condemn state property, they lose all incentive to condemn your property once you tell them about your new arrangement. If the condemnation would be for a true public use (as we used to understand it) like building a highway or a bridge, you can always put a clause in the contract that exempts such true public uses from triggering the passage of title to the state.
Now since the local government gains nothing by using eminent domain for shifty purposes, they won’t condemn your property … and the state never takes title. But the state does get a valuable interest in your land, and it gets political brownie points by being perceived as “defending the little guy” from corrupt local politicians and fatcat developers. To top it all off, you get a fee from the state in exchange for its interest in your land.
This strikes me as a quick way to inoculate property against greedy local governments. What do you think?

UPDATE: Will Collier rounds up other possible solutions.
UPDATE 2: This post has merged at high speed into today’s Beltway Traffic Jam.

Say goodbye to property rights

The Kelo Five

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment V, U.S. Constitution
[Emphasis added]

If you read the Fifth Amendment, you’d think that the government is prohibited from taking private property for private use, wouldn’t you? But according to five unelected lawyers, you’d be wrong.
The U.S. Supreme Court just handed down a ruling in the case of Kelo v. New London, in which it declared that your city government can take your house, bulldoze it, and sell the lot to a developer … so that the government can charge more in property taxes on the new commercial property that used to be your home.
Here’s the travesty opinion; read it and weep:

More on this later. For now, check out Michelle Malkin (and don’t miss the boiling anger across the blogosphere). Reactions excerpted here, too.

UPDATE: Justice Thomas’ dissent does a great job of explaining that words mean things … especially in our Constitution:

The most natural reading of the [Takings] Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever. At the time of the founding, dictionaries primarily defined the noun “use” as “[t]he act of employing any thing to any purpose.” The term “use,” moreover, “is from the Latin utor, which means ‘to use, make use of, avail one’s self of, employ, apply, enjoy, etc.” When the government takes property and gives it to a private individual, and the public has no right to use the property, it strains language to say that the public is “employing” the property, regardless of the incidental benefits that might accrue to the public from the private use. The term “public use,” then, means that either the government or its citizens as a whole must actually “employ” the taken property.

Justice Thomas, in dissent

I don’t see anything in New London’s confiscation of Suzette Kelo’s home that involves a public use. The city’s going to sell the land to a private developer. If we lived anywhere but in Supreme Court World, the violation of Kelo’s constitutional rights would be obvious.

UPDATE 2: Professor Bainbridge points out the injustice in succinct terms by recalling a post he made in February:

… the requirement to pay fair market value is a grossly inadequate safeguard on government power for two reasons in Kelo. First, it fails to take into account the subjective valuations placed on the property by people whose families have lived on the land, in at least one case, for a 100 years. In other words, if the Supreme Court rules for the city, the government will be able to seize land at a price considerably below the reservation price of the owners. Second, unlike the prototypical eminent domain case, in which the land is seized to build, say, a school or road, in this case the city is using eminent domain to seize property that will then be turned over to a private developer. If this new development increases the value of the property, all of that value will be captured by the new owner, rather than the forced sellers. As a result, the city will have made itself richer (through higher taxes), and the developer richer, while leaving the forced sellers poorer in both subjective and objective senses.

Will Collier at Vodkapundit sees what’s coming:

This is a dreadful decision. If politicians have the right to take your private property and give it to somebody else just because the other guy claims that he can generate more taxes from it, then property rights have ceased to exist in the US.
The localities are still required to pay “a just price” when one of these takings occurs, but the price even a willing seller would be able to get from his property just took a huge hit. All a developer has to do now is make a lowball offer and threaten to involve a bought-and-paid-for politician to take the property away if the owner doesn’t acquiesce.

You know it’ll happen, and soon.

UPDATE 3: RightNumberOne knows that it’s all about following the money:

A land rush is about to begin. Polticians bought and paid for with campaign donation bribes are about to be unleashed on the United States like a plague of rats. You can either become a donor, or your land will be forced from you and turned over to people who are more politically astute.

It’ll start this very week, I have no doubt. Geez, must property owners now form a 527 group to funnel protection money to politicians? Why do we even have a Constitution if five dipdunks in black robes rule over us unopposed?

UPDATE 4: Glenn Reynolds thinks this decision’s going to cause a public opinion tsunami. I agree. More from Glenn here and here.

UPDATE 5: Jeff Goldstein nails it:

Lovely how the majority justices tried to cover this decidedly anti-Lockean decision with a rhetorical appeal to federalism (“local officials, not federal judges, know best…”). But just because the decision allows a local government (rather than the federal government, with its cynical appeal to a malleable Commerce Clause) to assert what appears to me to be an extra-Constitutional claim on a private citizens� property rights doesn�t make it any more kosher�and today�s decision, in its expansion of what can be shoehorned into the category of �public use,� gives carte blanche for municipalities to remake the geography in any way they see fit, so long as they can make the argument that they are doing so for the common weal (which in many cases is really just an excuse for gentrification�and legalizes the taking of private property from one owner and transferring it, by municipal will, to another government approved private property owner; it�s a plutocrat�s wet dream).

This is nannystatism at its most cynical. And if the Bush administration were to use this ruling to push for the kinds of conservative justices who strongly object to what amounts to outright thievery and municipal bullying, I think they�d have a real winner on their hands.
If developers wish to purchase potentially profitable land for civic development, let them strike a bargain with the land�s rightful owner; allowing them to achieve their aims by lobbying unctious and pliable elected officials instead gives those elected officials far too much power, and subverts the natural workings of a free market system.

Personally, I�m for starting a cyber support group for the New Londoners who are planning a show of civil disobedience when the bulldozers tractor up to the doors of their homes. Anybody else?

The more I think about this, the angrier I get. Meanwhile, Fox News and CNN and MSNBC focus on the missing girl in Aruba, proving yet again that the mainstream media is painfully out-of-touch. By contrast, look at what the blogosphere’s talking about.

NBA team donates to charity; dog returns favor

The second half of tonight’s game between the Orlando Magic and the Detroit Pistons was delayed when a seeing-eye dog left a deposit on the court:

The dog was with a charity organization, Canine Companions for Independence, that was receiving a $10,000 donation from the Orlando Magic Youth Foundation.
When the Pistons came out for warmups, Rasheed Wallace walked up to the lane where the excrement had fallen, stopped and stared in disbelief. His teammates were just as confused before wide smiles broke out.

Maybe the pooch was a Pacers fan.

Scalia’s verbal stiletto

Jeremy at Parableman watched a debate on C-SPAN yesterday, where Supreme Court Justices Antonin Scalia and Stephen Breyer discussed the proper weight to assign to foreign law when deciding controversies in U.S. constitutional law. Jeremy spotted a wonderful example of Scalia’s rhetorical skill:

One thing really struck me in his explanation of one small point related to his view, and it displayed his keen rhetorical skill (in the good sense of the term ‘rhetoric’ and not the sense in which something might be mere rhetoric). It’s the sort of thing I would hold up as a model for speaking with those who might disagree. He was explaining why people who disagree with him on this should hesitate to see other countries’ moral views as a guide to our own. If you want to avoid being arbitrary and circular, you can’t pick and choose which countries to guide you to find ones that agree with you. Then he gives an example. Since very few countries allow abortion-on-demand in the first trimester, the American allowance of exactly that is a minority position. If we were going to allow world opinion to shape our interpretations of rights and laws, we’d have to restrict abortion far more than we do. Most left-thinking types don’t want that.

What a great technique for adding extra oomph to an argument. I’ll file that one away for future reference. Thanks for catching it, Jeremy.

Clarence Thomas, illiterate

So says Senator Harry Reid, I suppose. The new Minority Leader had some choice words for Supreme Court Justice Clarence Thomas on NBC News’ Meet The Press this past Sunday:

MR. RUSSERT: Why couldn’t you accept Clarence Thomas?
SEN. REID: I think that he has been an embarrassment to the Supreme Court. I think that his opinions are poorly written. I don’t–I just don’t think that he’s done a good job as a Supreme Court justice.

The man who delivers speeches like this and writes opinions like this is “an embarrassment”? Senator Reid doesn’t say that about Justice Antonin Scalia, another conservative on the Court whose opinions track closely with those of Justice Thomas. In fact, Reid could see himself supporting Scalia’s nomination as Chief Justice if it comes right down to it. What could explain the difference in Senator Reid’s attitude?

Justice Thomas
Justice Thomas
Justice Scalia
Justice Scalia

Gimme a minute, I’m sure it’ll come to me eventually.

UPDATE: Told you so.

Sanity returns

The U.S. Court of Appeals for the 6th Circuit just restored common sense to Ohio’s provisional voting mess. You don’t get to vote wherever the heck you want. If you can’t keep your registration current, then stay home and let the adults vote.
Now if only we had a law requiring photo ID at the polls, I’d be much less worried about Democrat voter fraud.