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.”

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.

There’s hope for leftists

I’m heartened to see that at least one young reflexive Bush-hater can see his error after speaking to Iraqis. An excerpt:

You may think that you have felt dumb before, but let me tell you something: until you have stood in front of a man who knows real pain and told him that you are against your country’s alleviation of his country’s state-sponsored murderous suffering, you have not felt truly, deeply, like a total f****** moron.
I still am no Bush fan, and I know that America got lied to. I know we shouldn’t have gone, and I think Rove is as evil as they come. But through all this deception and lying, through all this dismemberment and pain, America has wrought a beautiful, fantastic side effect: joy, freedom and a hope for peace. Does it take lies and misdirection to do this?? Is this what the other side of justice is? I feel like such a whiner and I don’t know what to think anymore. Ultimately, in total defiance of my mother and grandmother�s teachings, two wrongs have made a right and my moral compass is tired and busted.
I can’t tell the difference between the good guys and the bad guys, and I want a clear cut mandate, some lines to believe along. But there aren’t any. There’s just right and wrong and following your heart of hearts. And for the first time in my life, I can say that I was wrong to be compulsively critical of the current administration without seeking my own truth.

A neocon in the making, perhaps?
Hat tip: She Who Will Be Obeyed

UPDATE: SMASH reponds, and gets a response.