Time to Put Nino Out to Pasture

Intellectual history often presents its students with shocks, most prominently: how is it that people seemed to reject an idea that in retrospect was brilliant or useful?  Conversely, how is it that people believed that intellectual mediocrities were learned savants?
 

Justice Scalia’s latest statement on Supreme Court doctrine suggests that he will be a fit subject for the latter topic:

Justice Antonin Scalia predicted Monday that the Supreme Court’s decision in Kelo v. City of New London will be overturned.

Speaking to students at the Chicago-Kent School of Law, Scalia criticized the decision allowing the city of New London to use eminent domain to seize property for economic development, the Chicago Sun-Times reports. “I do not think that the Kelo opinion is long for this world,” Scalia said.

Scalia ranked Kelo among the top cases in which the court made a mistake of political judgment, according to the Sun-Times account. The others were the Dred Scott v. Sanford decision in favor of a slave owner and the Roe v. Wade decision finding a constitutional right to abortion.

“My court has, by my lights, made many mistakes of law during its distinguished two centuries of existence,” Scalia said. “But it has made very few mistakes of political judgment, of estimating how far … it could stretch beyond the text of the Constitution without provoking overwhelming public criticism and resistance. Dred Scott was one mistake of that sort. Roe v. Wade was another. … And Kelo, I think, was a third.”

This must set some sort of record for obtuseness.  In Roe and Dred Scott, the Court short-circuited the political process by holding that certain statutes were unconstitutional (in Dred Scott, Congressional prohibition of slavery in the territories; in Roe, state abortion laws).  In Kelo, by contrast, the Court refused to block the results of the political process: it upheld the result of state and local democratic decision-making. How in the world can deferring to the actual judgment of democratic electorates constitute a political mistake of misjudging the public will?

Same to you, buddy

In case slower learners didn’t recognize the point, Justice Stevens’ opinion for the court emphasized that if states wanted to institute their own restrictions on the use of eminent domain authority, they were welcome to do so.  Many did, although many of these laws were basically cosmetic.  In short, then, in those areas where people felt strongly that eminent domain power had been abused, they changed the law.  That’s the way democracy is supposed to work. 

Deferring to the elected branches can represent a mistake of legal judgment, or moral judgment.  See, e.g., Korematsu, or the Civil Rights Cases, or Buck v. Bell.  Deferring to the elected branches can represent a mistake of political judgment if there is reason to believe that election results were achieved through force, or fraud, or injustice.  But here?  It’s simply incoherent.

Maybe this is a time to start reconsidering the absence of an age limitation for Supreme Court justices.  Scalia has already acknowledged that in many important cases, he doesn’t even bother to read the briefs.  If he’s too tired to the job, I’m sure we can find others.

I’ve long been mystified by many scholars’ belief that Scalia is some sort of intellectual giant.  Most of his theories, I think, will eventually be regarded as a sort of jurisprudential phrenology, promising scientific results but actually just judicial quackery.  Consider his views on Kelo to be a brief for the prosecution.

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Reader Comments

36 Replies to “Time to Put Nino Out to Pasture”

  1. Not really: she got paid for her property. There may very well be a problem in some eminent domain cases with the valuation of the property because it ignores things like goodwill (for businesses), but if I recall correctly, Kelo was offered several times her house’s market value to get her out of there.

    But that’s not the point. It may very well been an injustice. In that case, however, the Court’s mistake was not political; it was, instead, moral or legal. And fair enough. But it makes no sense for Scalia to say that the Court made a POLITICAL mistake. Scalia’s previous critique of Roe was that it represented an attempt by the Court to solve a political issue that should have been left to the elected branches. In Kelo, the Court decided to leave the matter to the political branches, and Scalia says that it made the same mistake. That suggests that Scalia’s judgment is about his own political values — or that he just isn’t thinking clearly.

  2. Not really: she got paid for her property. There may very well be a problem in some eminent domain cases with the valuation of the property because it ignores things like goodwill (for businesses), but if I recall correctly, Kelo was offered several times her house’s market value to get her out of there.

    But that’s not the point. It may very well been an injustice. In that case, however, the Court’s mistake was not political; it was, instead, moral or legal. And fair enough. But it makes no sense for Scalia to say that the Court made a POLITICAL mistake. Scalia’s previous critique of Roe was that it represented an attempt by the Court to solve a political issue that should have been left to the elected branches. In Kelo, the Court decided to leave the matter to the political branches, and Scalia says that it made the same mistake. That suggests that Scalia’s judgment is about his own political values — or that he just isn’t thinking clearly.

  3. I don’t think Scalia’s point was that Kelo should be overturned because it was a political mistake, as it seems you are contending. Rather, he argues that Kelo was wrong because “it went beyond the text of the Constitution,” i.e. a legal mistake, and then suggests that the Court underestimated the political ramifications of its decision. On the other hand, certain legal mistakes are not likely be corrected or addressed by state courts because they are not particularly controversial.

    And for what it’s worth, I disagree with you on the injustice issue (the case made a mocker of the public use requirement), but I understand that wasn’t the point of your post.

  4. I don’t think Scalia’s point was that Kelo should be overturned because it was a political mistake, as it seems you are contending. Rather, he argues that Kelo was wrong because “it went beyond the text of the Constitution,” i.e. a legal mistake, and then suggests that the Court underestimated the political ramifications of its decision. On the other hand, certain legal mistakes are not likely be corrected or addressed by state courts because they are not particularly controversial.

    And for what it’s worth, I disagree with you on the injustice issue (the case made a mocker of the public use requirement), but I understand that wasn’t the point of your post.

  5. I think Scalia here just made a clumsy statement that actually reflects the views of a lot of observers: the Court caused an unanticipated political reaction with Kelo. I remember when Kelo was handed down and many of the public criticisms of Kelo were just as incoherent than Scalia’s statement because they failed to understand that the decision did not require anyone other than the federal judiciary to permit the use of eminent domain in public benefit cases. They acted as if the Supreme Court was requiring the use of eminent domain for public benefit. While a couple moments of thinking reveal how this can’t be the case, most people don’t put more than a moment into thinking about Supreme Court cases.

    Kelo was a reminder to the Court that the public pays some attention to the simple outcomes of cases (Court approves taking house, Court approves abortions, Court approves corporations buying elections, etc.) but the public pays almost no attention to the law handed down (not noticing that Kelo differs from Roe, Dred Scott, and Citizens United because Kelo authorized government action while the other three prohibited it).

  6. I think Scalia here just made a clumsy statement that actually reflects the views of a lot of observers: the Court caused an unanticipated political reaction with Kelo. I remember when Kelo was handed down and many of the public criticisms of Kelo were just as incoherent than Scalia’s statement because they failed to understand that the decision did not require anyone other than the federal judiciary to permit the use of eminent domain in public benefit cases. They acted as if the Supreme Court was requiring the use of eminent domain for public benefit. While a couple moments of thinking reveal how this can’t be the case, most people don’t put more than a moment into thinking about Supreme Court cases.

    Kelo was a reminder to the Court that the public pays some attention to the simple outcomes of cases (Court approves taking house, Court approves abortions, Court approves corporations buying elections, etc.) but the public pays almost no attention to the law handed down (not noticing that Kelo differs from Roe, Dred Scott, and Citizens United because Kelo authorized government action while the other three prohibited it).

  7. “The public pays attention to the simple outcomes of cases but pays almost no attention to the law handed down.” You’re absolutely right: but a JUSTICE should certainly be able to make the distinction, and Scalia didn’t. And remember, this was a speech to an academic audience, so in my view, it was more than just clumsy. Shouldn’t a justice be able to analyze legal precedent in a way that is better than just reflecting the views of untutored observers? In any event, when you start comparing a decision to Dred Scott, you’re doing more than giving a gentle reminder that the public might not understand the full implications of legal doctrine

  8. “The public pays attention to the simple outcomes of cases but pays almost no attention to the law handed down.” You’re absolutely right: but a JUSTICE should certainly be able to make the distinction, and Scalia didn’t. And remember, this was a speech to an academic audience, so in my view, it was more than just clumsy. Shouldn’t a justice be able to analyze legal precedent in a way that is better than just reflecting the views of untutored observers? In any event, when you start comparing a decision to Dred Scott, you’re doing more than giving a gentle reminder that the public might not understand the full implications of legal doctrine

  9. It is not accurate to say Justice Scalia “acknowledged that in many important cases, he doesn’t even bother to read the briefs.” This is a gross misrepresentation of what he said. As you noted in your prior post (linked above), what Scalia actually said is that he didn’t “have to read the briefs.” This is not the same thing. Scalia’s comment was that in certain cases that reading the briefs is unnecessary to evaulate the arguments, not that he did not actually read them. C’mon Professor Zasloff. I thought you were more careful than that.

    [Incidentally, for what it’s worth, I think Scalia’s comments on Kelo were misguided, and that the decision was constitutionally correct, even if Ms. Kelo suffered a grave injustice and the decision is likely to produce negative environmental results.]

    JHA

  10. It is not accurate to say Justice Scalia “acknowledged that in many important cases, he doesn’t even bother to read the briefs.” This is a gross misrepresentation of what he said. As you noted in your prior post (linked above), what Scalia actually said is that he didn’t “have to read the briefs.” This is not the same thing. Scalia’s comment was that in certain cases that reading the briefs is unnecessary to evaulate the arguments, not that he did not actually read them. C’mon Professor Zasloff. I thought you were more careful than that.

    [Incidentally, for what it’s worth, I think Scalia’s comments on Kelo were misguided, and that the decision was constitutionally correct, even if Ms. Kelo suffered a grave injustice and the decision is likely to produce negative environmental results.]

    JHA

  11. Jon, if a student said, “Zasloff’s teaching is so vapid, I don’t even have to go to class,” I think it’s a pretty reasonable inference to conclude that she DOESN’T go to class. Perhaps that’s being a little uncharitable to Nino, but given his attitude to everyone who disagrees with him, including his colleagues, he doesn’t deserve the benefit of the doubt. In any event, I’m glad that people are giving Scalia’s statement the sort of careful parsing that they denied to, say, Al Gore.

  12. Jon, if a student said, “Zasloff’s teaching is so vapid, I don’t even have to go to class,” I think it’s a pretty reasonable inference to conclude that she DOESN’T go to class. Perhaps that’s being a little uncharitable to Nino, but given his attitude to everyone who disagrees with him, including his colleagues, he doesn’t deserve the benefit of the doubt. In any event, I’m glad that people are giving Scalia’s statement the sort of careful parsing that they denied to, say, Al Gore.

  13. Zasloff: I think you may have a point but given the heavy use of ellipses in the article, I can’t tell if Scalia is making an honest attempt to point out the difference while still making a commonly-made point about Kelo, or being as intellectually lazy as you claim. My main point is that I think Scalia is right — the Court misjudged the reaction to Kelo — and I think this happened because the Court understood the law and the public had a common misunderstanding that the Court is the final decisionmaker.

    As for the Chicago Sun-Times and the ABA Journal that quoted the newspaper rather than getting a sense of context from the original source, I’d say they’re guilty of the charge you press against Scalia.

  14. Zasloff: I think you may have a point but given the heavy use of ellipses in the article, I can’t tell if Scalia is making an honest attempt to point out the difference while still making a commonly-made point about Kelo, or being as intellectually lazy as you claim. My main point is that I think Scalia is right — the Court misjudged the reaction to Kelo — and I think this happened because the Court understood the law and the public had a common misunderstanding that the Court is the final decisionmaker.

    As for the Chicago Sun-Times and the ABA Journal that quoted the newspaper rather than getting a sense of context from the original source, I’d say they’re guilty of the charge you press against Scalia.

  15. I know several students who said as much about specific classes but attended anyway, so I guess your experience is different than mine. I also think the context of Scalia’s statement — referring to the sorts of claims that he believes are non-starters given his professed (albeit inconsistent) devotion to originalism and his exasperation — furthers the point. Again, however, YMMV.

    As for Al Gore, do you have any specific incident in mind in which I (or any of the other commenters to this thread) mischaracterized his views due to a lack of careful parsing? Or was this just a general sideswipe and any/all of those on the right who, because of their general political views, must have been guilty of such a thing?

    JHA

  16. I know several students who said as much about specific classes but attended anyway, so I guess your experience is different than mine. I also think the context of Scalia’s statement — referring to the sorts of claims that he believes are non-starters given his professed (albeit inconsistent) devotion to originalism and his exasperation — furthers the point. Again, however, YMMV.

    As for Al Gore, do you have any specific incident in mind in which I (or any of the other commenters to this thread) mischaracterized his views due to a lack of careful parsing? Or was this just a general sideswipe and any/all of those on the right who, because of their general political views, must have been guilty of such a thing?

    JHA

  17. I think Scalia’s description of Kelo is coherent.

    “How in the world can deferring to the actual judgment of democratic electorates constitute a political mistake of misjudging the public will?” Two obvious answers. First, deference to a local electorate (e.g the City of New London) can be political mistake if the national electorate thinks that individuals should be constitutionally protected from local majorities. This is a simple idea with an august pedigree–look at Federalist # 10.

    Second, the crucible of a Supreme Court appeal may itself cause a democratic electorate (whether national or local) to change its mind, such that the Supreme Court’s ultimate decision to side with the majority’s old view is out of step with the majority’s new view. The media coverage of the Kelo dissent might have reminded people who previously supported the development scheme for practical reasons that they ought to oppose it because of their deeper commitment to the sanctity of private property for ideological reasons.

    I also think Scalia’s main observation is interesting and non-obvious. Despite all the disagreement about hard questions you see in nearly every Supreme Court case, the Court hasn’t made a lot of mistakes that provoked a popular public outcry. From Madison v. Marbury to Bush v. Gore, the Court hasn’t gotten politically burned as much as you would expect when it ventures into the political fray on dangerous issues. (The court packing/stitch in time is the exception that proves the rule.) I don’t know that I’ve ever heard a satisfying explanation for that phenomenon.

  18. I think Scalia’s description of Kelo is coherent.

    “How in the world can deferring to the actual judgment of democratic electorates constitute a political mistake of misjudging the public will?” Two obvious answers. First, deference to a local electorate (e.g the City of New London) can be political mistake if the national electorate thinks that individuals should be constitutionally protected from local majorities. This is a simple idea with an august pedigree–look at Federalist # 10.

    Second, the crucible of a Supreme Court appeal may itself cause a democratic electorate (whether national or local) to change its mind, such that the Supreme Court’s ultimate decision to side with the majority’s old view is out of step with the majority’s new view. The media coverage of the Kelo dissent might have reminded people who previously supported the development scheme for practical reasons that they ought to oppose it because of their deeper commitment to the sanctity of private property for ideological reasons.

    I also think Scalia’s main observation is interesting and non-obvious. Despite all the disagreement about hard questions you see in nearly every Supreme Court case, the Court hasn’t made a lot of mistakes that provoked a popular public outcry. From Madison v. Marbury to Bush v. Gore, the Court hasn’t gotten politically burned as much as you would expect when it ventures into the political fray on dangerous issues. (The court packing/stitch in time is the exception that proves the rule.) I don’t know that I’ve ever heard a satisfying explanation for that phenomenon.

  19. So the Gore reference was a general sideswipe against all on the right intended to deflect criticism and distract from the substance at issue, because otherwise its a non sequitur. Your statement — “In any event, I’m glad that people are giving Scalia’s statement the sort of careful parsing that they denied to, say, Al Gore.” — suggests that the “people” parsing Scalia’s language are those (“they”) who failed to carefully parse Gore’s language. After all, who are “they” other than the “people” who are now carefully parsing Scalia’s langauge? So, because a right-leaning commentator parse’s a conservative’s statement and challenges your uncharitable interpretation, your response is to suggest the point is somehow invalid because some other right-leaning people misrepresented Gore. Again, I thought you were more careful than that.

    JHA

  20. So the Gore reference was a general sideswipe against all on the right intended to deflect criticism and distract from the substance at issue, because otherwise its a non sequitur. Your statement — “In any event, I’m glad that people are giving Scalia’s statement the sort of careful parsing that they denied to, say, Al Gore.” — suggests that the “people” parsing Scalia’s language are those (“they”) who failed to carefully parse Gore’s language. After all, who are “they” other than the “people” who are now carefully parsing Scalia’s langauge? So, because a right-leaning commentator parse’s a conservative’s statement and challenges your uncharitable interpretation, your response is to suggest the point is somehow invalid because some other right-leaning people misrepresented Gore. Again, I thought you were more careful than that.

    JHA

  21. Well, in one sense yes, Jon: it is a general sideswipe against the Conservative Movement, which has a truly appalling record of promoting calumnies against one of the country’s leading environmentalist politicians. Their record against Gore was a brutal, sustained effort of taking things out of context and distorting them beyond all recognition. Then, when one of their own makes a completely incoherent statement concerning an issue on which he is supposed to be some sort of expert, we are confronted with tut-tuts and appeals to context. If you are going to use that sort of strategy, then I will expect the same sort of treatment.

    So in total: 1) you agree with my assessment of Scalia’s substantive point and accuse me of grossly misrepresenting what he says; then 2) you acknowledge that in fact my interpretation was legitimate and that “YMMV” but attack me on a tertiary throw-away line, denying that there was ever an effort to slime Gore; then 3) when I demonstrate that in fact there WAS such an effort, you say that that is irrelevant and that I shouldn’t have brought it up even though I made clear that I didn’t intend to accuse you. A little touchy, aren’t we?

  22. Well, in one sense yes, Jon: it is a general sideswipe against the Conservative Movement, which has a truly appalling record of promoting calumnies against one of the country’s leading environmentalist politicians. Their record against Gore was a brutal, sustained effort of taking things out of context and distorting them beyond all recognition. Then, when one of their own makes a completely incoherent statement concerning an issue on which he is supposed to be some sort of expert, we are confronted with tut-tuts and appeals to context. If you are going to use that sort of strategy, then I will expect the same sort of treatment.

    So in total: 1) you agree with my assessment of Scalia’s substantive point and accuse me of grossly misrepresenting what he says; then 2) you acknowledge that in fact my interpretation was legitimate and that “YMMV” but attack me on a tertiary throw-away line, denying that there was ever an effort to slime Gore; then 3) when I demonstrate that in fact there WAS such an effort, you say that that is irrelevant and that I shouldn’t have brought it up even though I made clear that I didn’t intend to accuse you. A little touchy, aren’t we?

  23. And by the way, I never suggested that the critique of my interpretation of Scalia was “invalid” because of the way conservatives treated Gore — that’s why I used the term “in any event.” It’s a pretty straightforward grammatical usage: I thought you were more careful than that!

  24. And by the way, I never suggested that the critique of my interpretation of Scalia was “invalid” because of the way conservatives treated Gore — that’s why I used the term “in any event.” It’s a pretty straightforward grammatical usage: I thought you were more careful than that!

  25. @tylermcnish —

    1) Oh yes: if there is a conflict between democratically elected majorities, then of course that is an issue. But that isn’t remotely what Kelo was about, and I certainly wasn’t suggesting any different.

    2) Also true, but I don’t see how that is a political error in anywhere close to the same way as Dred Scott or Roe, which was Scalia’s point. Recall his dissent in Casey, saying that the Court was doing the same thing as Taney did in Dred Scott, viz. trying to solve a political problem by taking it out of democratic governance and only making the problem worse in doing so. If the Court says, “the Constitution doesn’t prevent you from taking this step,” and then people are so outraged that they prevent by statute what the Constitution allows, then that isn’t a “political error” at all, at least in the sense that Scalia was suggesting. Most justices in that situation would say, “fine. Go ahead.” It doesn’t make the problem worse in any way.

    If Scalia’s point about the Court’s history was “interesting and non-obvious”, then that’s because it was quite wrong. The Court has gotten into terrible trouble political a whole lot between Marbury and Bush v. Gore: McCulloch, Cherokee Nation, Pollock, Lochner, and the whole outcry against the Warren Court in the 60’s. Lots of bumper stickers said “Impeach Earl Warren” and Richard Nixon practically ran against the Court in 1968. I haven’t seen one yet that said “Impeach John Paul Stevens” or the equivalent, although perhaps that’s because I live in California. If you’re really looking for a backlash, then the case is Employment Division v. Smith, which significantly cut back the free exercise clause (or at least appeared to), and might well have been right to do so. Congress overrode it the next year, with the Senate voting 99-0 to do so. The Court then struck down the Congressional statute on federalism grounds, leading to another outcry and generating state statutes all over the country. The author of Smith, of course, was that scholar of Court political history Antonin Scalia.

  26. @tylermcnish —

    1) Oh yes: if there is a conflict between democratically elected majorities, then of course that is an issue. But that isn’t remotely what Kelo was about, and I certainly wasn’t suggesting any different.

    2) Also true, but I don’t see how that is a political error in anywhere close to the same way as Dred Scott or Roe, which was Scalia’s point. Recall his dissent in Casey, saying that the Court was doing the same thing as Taney did in Dred Scott, viz. trying to solve a political problem by taking it out of democratic governance and only making the problem worse in doing so. If the Court says, “the Constitution doesn’t prevent you from taking this step,” and then people are so outraged that they prevent by statute what the Constitution allows, then that isn’t a “political error” at all, at least in the sense that Scalia was suggesting. Most justices in that situation would say, “fine. Go ahead.” It doesn’t make the problem worse in any way.

    If Scalia’s point about the Court’s history was “interesting and non-obvious”, then that’s because it was quite wrong. The Court has gotten into terrible trouble political a whole lot between Marbury and Bush v. Gore: McCulloch, Cherokee Nation, Pollock, Lochner, and the whole outcry against the Warren Court in the 60’s. Lots of bumper stickers said “Impeach Earl Warren” and Richard Nixon practically ran against the Court in 1968. I haven’t seen one yet that said “Impeach John Paul Stevens” or the equivalent, although perhaps that’s because I live in California. If you’re really looking for a backlash, then the case is Employment Division v. Smith, which significantly cut back the free exercise clause (or at least appeared to), and might well have been right to do so. Congress overrode it the next year, with the Senate voting 99-0 to do so. The Court then struck down the Congressional statute on federalism grounds, leading to another outcry and generating state statutes all over the country. The author of Smith, of course, was that scholar of Court political history Antonin Scalia.

  27. Jonathan,

    I read most of your posts on here because they are generally on point, with carefully selected conclusions, and many of them shed new insight on topics that don’t get press anywhere else. However, this particular post is completely misguided.

    There are a number of reasons why I agree with you that Scalia doesn’t belong on the Supreme Court Bench anymore, but frankly those are my own political opinions and are in no way related to his aptitude for deciding cases. You bash JHadler for not paying attention to grammar, yet have still not correctly understood the meaning of Scalia’s statement you quoted above.

    “My court has, by my lights, made many mistakes of law during its distinguished two centuries of existence,” – Scalia saying that he believes the court has made mistakes of law in the past. (Don’t we all). This one is easy.

    “But it has made very few mistakes of political judgment, – he then writes about a different type of mistake, a mistake of “political judgment.” This must be different from a mistake of law. He then continues to define what he means when he says a mistake of political judgment…

    “[a mistake] of estimating how far … it could stretch beyond the text of the Constitution without provoking overwhelming public criticism and resistance.” This is not the same as making a judgement that created political outcry. In fact, I believe the Court has often made judgments well aware of potential public outcry, but making a decision anyway because they felt the constitution supported their decision (or for other, less laudable reasons). However, the mistake is not in creating public outcry, but instead in miscalculating the amount of public outcry. They assumed in Kelo that there would be enough public support of their decision to make the public’s dissent irrelevant or at least relatively quiet. What he is saying is that the Court made the similar incorrect assessment when deciding Dred Scott and Roe.

    Dred Scott was one mistake of that sort. Roe v. Wade was another. … And Kelo, I think, was a third.”

    I honestly think this was a very carefully crafted statement by Scalia, and if you look at his opinions, most of his statements, while fairly complex, are usually carefully crafted to have a single meaning in the correct context. I (probably similar to you) don’t always agree with the content of these statements, but I do recognize that he has the mental capacity and aptitude to create them in a careful way.

  28. Jonathan,

    I read most of your posts on here because they are generally on point, with carefully selected conclusions, and many of them shed new insight on topics that don’t get press anywhere else. However, this particular post is completely misguided.

    There are a number of reasons why I agree with you that Scalia doesn’t belong on the Supreme Court Bench anymore, but frankly those are my own political opinions and are in no way related to his aptitude for deciding cases. You bash JHadler for not paying attention to grammar, yet have still not correctly understood the meaning of Scalia’s statement you quoted above.

    “My court has, by my lights, made many mistakes of law during its distinguished two centuries of existence,” – Scalia saying that he believes the court has made mistakes of law in the past. (Don’t we all). This one is easy.

    “But it has made very few mistakes of political judgment, – he then writes about a different type of mistake, a mistake of “political judgment.” This must be different from a mistake of law. He then continues to define what he means when he says a mistake of political judgment…

    “[a mistake] of estimating how far … it could stretch beyond the text of the Constitution without provoking overwhelming public criticism and resistance.” This is not the same as making a judgement that created political outcry. In fact, I believe the Court has often made judgments well aware of potential public outcry, but making a decision anyway because they felt the constitution supported their decision (or for other, less laudable reasons). However, the mistake is not in creating public outcry, but instead in miscalculating the amount of public outcry. They assumed in Kelo that there would be enough public support of their decision to make the public’s dissent irrelevant or at least relatively quiet. What he is saying is that the Court made the similar incorrect assessment when deciding Dred Scott and Roe.

    Dred Scott was one mistake of that sort. Roe v. Wade was another. … And Kelo, I think, was a third.”

    I honestly think this was a very carefully crafted statement by Scalia, and if you look at his opinions, most of his statements, while fairly complex, are usually carefully crafted to have a single meaning in the correct context. I (probably similar to you) don’t always agree with the content of these statements, but I do recognize that he has the mental capacity and aptitude to create them in a careful way.

  29. I actually think (1) is exactly what happened in Kelo. Local majoritarian institution used eminent domain power. Supreme Court said that was ok. Fox News said it was not ok. The national electorate agreed with Fox News. Therefore, Scalia gets to say that the Supreme Court’s deference to a local majority was a political mistake at the national level, i.e. the level at which the Supreme Court plays the game.

    I agree with everything you say in (2), but I think Scalia was saying something simpler than what you think he was saying. When Scalia says “political mistake” I think he just means “very unpopular decision” not “a decision that takes the issue out of the majoritarian political system.” Maybe the Kelo “mistake,” unlike the other mistakes Scalia mentioned, can be “politically fixed”–but just because you can fix it doesn’t mean it wasn’t a mistake in the first place. Moreover, if you feel your view of private property rights is so morally important that it should be enshrined in the constitution so as to benefit every individual in every state for all time–and I do think that was the tenor of much of the opposition to Kelo–then Kelo can’t be politically fixed.

    I do however agree with you that the (sort of) “fixability” of Kelo means it’s not as momentous as the other two decisions and shouldn’t be mentioned in the same sentence. Also, for the record, I don’t think Kelo was a mistake in the first place.

    Re Scalia’s main point, I stand corrected. I didn’t know about all those public backlashes you mentioned, so thanks for enlightening me. Apparently there is also evidence that Bush v. Gore had a lasting impact on public perception of the Court, at least among Democrats: http://electionlawblog.org/archives/018266.html.

  30. I actually think (1) is exactly what happened in Kelo. Local majoritarian institution used eminent domain power. Supreme Court said that was ok. Fox News said it was not ok. The national electorate agreed with Fox News. Therefore, Scalia gets to say that the Supreme Court’s deference to a local majority was a political mistake at the national level, i.e. the level at which the Supreme Court plays the game.

    I agree with everything you say in (2), but I think Scalia was saying something simpler than what you think he was saying. When Scalia says “political mistake” I think he just means “very unpopular decision” not “a decision that takes the issue out of the majoritarian political system.” Maybe the Kelo “mistake,” unlike the other mistakes Scalia mentioned, can be “politically fixed”–but just because you can fix it doesn’t mean it wasn’t a mistake in the first place. Moreover, if you feel your view of private property rights is so morally important that it should be enshrined in the constitution so as to benefit every individual in every state for all time–and I do think that was the tenor of much of the opposition to Kelo–then Kelo can’t be politically fixed.

    I do however agree with you that the (sort of) “fixability” of Kelo means it’s not as momentous as the other two decisions and shouldn’t be mentioned in the same sentence. Also, for the record, I don’t think Kelo was a mistake in the first place.

    Re Scalia’s main point, I stand corrected. I didn’t know about all those public backlashes you mentioned, so thanks for enlightening me. Apparently there is also evidence that Bush v. Gore had a lasting impact on public perception of the Court, at least among Democrats: http://electionlawblog.org/archives/018266.html.

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About Jonathan

Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…

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