Warm up your TV set, hearings will begin in Washington today on Judge Samuel Alito’s nomination to replace the U.S. Supreme Court’s most frequent swing vote, Justice Sandra Day O’Connor.
In the bombast and gasconade that accompanies such hearings, you’ll hear much denunciation of “judicial activism.” But most of the politicians will secretly be hoping for the very thing they publicly denounce – they just want a judge to shoehorn their vision of America into the Constitution.
The furor last year over the Kelo vs. New London decision is a case in point. Right-wingers railed against those mean judicial activists who, in the words of one local pol, “ignored our sacred property rights.”
Never mind that the Founding Fathers reserved the word “sacred” for something far more important than real estate, as when they pledged “our lives, our fortunes and our sacred honor” in the Declaration of Independence. The simple fact is that the Kelo decision didn’t take anybody’s property rights away. It merely decided that there is nothing in the U.S. Constitution to stop a state or local government from condemning private property for purposes of economic redevelopment, as long as the owner is paid “just compensation.”
Actually, given previous case law on this point, the real surprise is that four justices did vote to let the federal government resolve what seems to be a clearly local matter. Three of the four dissenting justices, William Rehnquist, Antonin Scalia and Clarence Thomas, would doubtless have been offended to be called judicial activists. But the effect, if not the intent, of their votes would have been to extend federal power into an area traditionally reserved to the states by the 10th Amendment, on behalf of private property interests.
In truth, such activism on behalf of property is the rule, not the exception, for the federal judiciary. Page Smith’s masterful eight-volume “A People’s History of the United States” documents case after case where an activist federal judiciary overturned state and local laws favoring consumers or labor in behalf of capital.
In the light of history, the liberal activism of the Warren Court years is an anomaly. Now, the pendulum on the high court is swinging back to the conservative activism that has dominated most of its decisions. I doubt that President Bush would have nominated Alito if he didn’t think he would add momentum to that swing.
Yet talking to Alberto Rivas, a Democrat who worked with Alito in the New Jersey Attorney General’s office, gave me reason to hope Alito would bring the respect for precedent and decent regard for the role of the states that the high court needs. I asked Rivas to describe how Alito would have analyzed the Kelo case. To make a long and thoughtful answer short, it focused on how Alito would have explored how the definition of “public use” in the 5th Amendment had evolved historically as well as asking whether the federal government had the power to override state laws on this issue.
Those are the right questions to ask, rather than simply leaping to defend private property or government powers. The Kelo decision, in turn, is a good yardstick to judge Alito by because – whether or not you like the result in this specific case – the process is the epitome of judicial restraint. After all, Justice John Paul Stevens’ majority decision invited parties concerned with abuse of eminent domain authority to seek relief from their state legislatures or state courts. That’s precisely as it should be.
In Colorado, the legislature has already set limits on eminent domain power, and the state Supreme Court enforced them in a recent decision reining in an effort by Arvada to condemn a private development to make way for (who else?) Wal-Mart.
Further efforts are already underway by Sen. Bob Hagedorn, D-Aurora, Rep. Al White, R-Winter Park, and others to further limit eminent domain powers. Again, without judging the merits of those proposals, it’s clear the legislature is the proper venue to address an issue whose impact is limited to Colorado.
It’s too early to tell whether Samuel Alito fits into the Kelo model of judicial restraint. But those are the answers the Senate should seek from him.
Bob Ewegen (bewegen@denverpost.com) is deputy editorial page editor of The Denver Post. He has covered state and local government since 1963.
