Some thoughts on John Roberts' testimony

He stated, in the context of the eminent domain ruling by the U.S. Supreme Court this year, that the Court merely said that legislatures have to option under the Constitution to take private property to be used for other private development as part of a redevelopment plan. He said the Court is not saying the legislatures of the states or Congress must use that power but rather it is a power that is available to them. He then went on to say that legislatures can be protectors of rights too:

"That leaves the ball in the court of the legislature. And I think it's reflective of what is often the case -- and that people sometimes lose sight of -- that this body and legislative bodies in the states are protectors of the people's rights as well."

The subtext here that is being smoothed over is that the Supreme Court stated that property owners do not have any real property rights when it comes to eminent domain in these circumstances. The Court said it will not recognize any property right on the part of an owner when a city decides a redevelopment plan requires the owner to relinquish ownership of their home.

Basically, he argues that the legislatures may themselves confer such a property right on their citizens if they so choose. However, as I would hope he would acknowledge, a right granted by statute is quite different from a constitutional right.

The Kelo v. New London decision on eminent domain is a perfect example of what John Roberts says the court is not supposed to do: make policy (or, more broadly labeled, "make law").

People on the left or the right are being disingenuous when they saw that judges or justices are merely in the business of interpretting law and should not make law. Granted, it's true, that judges and justices do not pass statutes into law. But, in the very act of interpretting a constitutional or statutory provision, they are deciding public policy that is binding on the citizens of the various states or the nation.

Judge Roberts expressly acknowledges this role of the court:

"Well, I think the framers, when they used broad language like liberty, like due process, like unreasonable with respect to search and seizures, they were crafting a document that they intended to apply in a meaningful way down the ages.

"As they said in the preamble, it was designed to secure the blessings of liberty for their posterity.

"They intended it to apply to changing conditions. And I think that, in that sense, it is a concept that is alive in the sense that it applies -- and they intended it to apply, in a particular way, but they intended it to apply -- down through the ages."

Who is to decide how the Constitution should apply in changing conditions? The U.S. Supreme Court justices, of course. And, regardless how you label it, that makes the Court a policymaker.

This method of establishing public policy is far different from the legislative process, since the courts should not create new policies out of whole cloth; a judge's public policy choices are, in theory, constricted by the plain language of the constitution or a statute and judicial precedents. However, in reality, their public policy choices are constrained only by their own understanding of issues involved and the degree to which they are able to subordinate their own ideological preferences to the "rule of law" through a process of rational consideration.

While Judge Roberts isn't necessarily captivating with any of this comments, some of the Senators quizzing him have made some interesting comments. Take this one from Senator Brownback of Kansas:

"... [M]y state is the proud home state host of Brown v. Board of Education."

I'm curious as to what, exactly, he's proud of? Is he proud his state was the one that was sued over - yet defended - discriminatory treatment of its school age citizens? Is he expecting us to find honor in that, since Kansas created the controversy that lead to the court case by which the Supreme Court overturned Plessy v. Ferguson?

Should my own state, Alabama, be proud of the beatings in Selma on Bloody Sunday because that event helped build support for and led to passage of the Voting Rights Act?

Saying Kansas is the "proud home state host of Brown v. Board of Education" distances the state and its people from the events leading up to and including the famous court proceedings that resulted in that momentous decision. It suggests that Kansas had no great role than to be a host for the event, but not a party to the event - and definitely not the losing party at the event.

Did it strike you as odd as it did me that Judge Roberts proclaims no real experience or knowledge related to First Amendment litigation?

"Senator, I haven't dealt with a lot of First Amendment access cases. I studied one about media access to prisons, for example; the issue about whether the media had a right of access to prisons -- they wanted to report on it. And so I'm not terribly familiar with the precise levels of scrutiny that apply." [emphasis added]

And First Amendment litigation is one of the most important areas of litigation covered by the Court.