« Observations on Kelo | Main | Kelo and regulatory takings »
Thursday, June 23, 2005
Kelo and judicial deference to legislatures
Kelo | Posted by Ilya Somin at 03:37 PM
One of the main arguments deployed by Justice Stevens' majority opinion, and also by other opponents of strong judicial review of takings, is the alleged desirability of judicial deference to legislative judgement. As Stevens puts it, courts should not "second-guess the City's considered judgments about the efficacy of its development plan."
However, Stevens and the other justices in the majority routinely vote to "second-guess" political decisions on issues like abortion, the death penalty, police searches, censorship of pornography, and privacy rights. While Stevens is probably right to assume that judges do not have as much expertise as elected officials do on takings, it is also likely that they have less expertise than legislatures do on most of the other issues mentioned above.
Perhaps there is a principled rationale for distinguishing takings and other economic liberties issues from the kinds of matters where Stevens & Co. are less willing to defer to legislative "expertise." But it is telling that Stevens does not even attempt to present such a rationale - either in this case or in other major decisions where the deference to expertise argument has been deployed (notably the recent medical marijuana/federalism case, Gonzales v. Raich, where Stevens used the same argument to justify judicial deference on federalism questions).
Update: Some people, including a commenter on this post, argue that Stevens does not need to justify his inconsistent treatment of deference to legislative expertise because "The whole modern apparatus of constitutional law is about distinguishing cases where judicial judgments are superior or required by constitutional obligation." However, there is a difference between saying that judicial deference is required because of superior legislative expertise on the issue in question, and saying that it is mandated by - for example - text, original meaning, or the unimportance of the right in question. I think there is a clear double standard in the way many judges use the expertise rationale for deference, even in cases where they might be able to justify their position on other grounds.
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Comments
Prof. Somin wrote, "Perhaps there is a principled rationale for distinguishing takings and other economic liberties issues from the kinds of matters where Stevens & Co. are less willing to defer to legislative 'expertise.'"
Well, yes, there is. And, not to be too snarky, but it's called constitutional law. The whole modern apparatus of constitutional law is about distinguishing cases where judicial judgments are superior or required by constitutional obligation (strict scrutiny) from those where deference (rational basis scrutiny, Chevron doctrine) is adequate.
I guess one could question whether that apparatus ultimately is sensible. But I find it a bit ridiculous to assert blithely that all forms of non-judicial decisions are indistinguishable, and to criticize the Court for not explaining how it distinguishes amongst them in very recent decisions, when in fact the Court has been in the process of explaining just that since at least about 1937. If not 1803.
So, in short, I think it would be wiser for those who are challenging very established doctrine to familiarize themselves with the doctrine before they start knocking it. That Carolene Products opinion seem like a good place to start. I bet you could find it on westlaw.
Posted by: aggrieved reader at June 23, 2005 04:48 PM
Much of the blogging on Kelo strikes me as terribly court-centered. The Supreme Court, on the other hand, appears to have taken seriously the idea of a Constitution outside of the Courts (see, e.g., James E. Fleming's scholarship). Instead of viewing Raich and Kelo through the lens of a court-lover and decrying the Court's deference to legislatures as an institution, one could view it through the lens of a legislature-lover and applaud the Court for respecting its co-equal branch, the Legislature. The Court here perhaps is presuming that legislators, even on the local level, will bear in mind their obligation to act constitutionally and take action only if it is warranted. In those cases where legislators overstep their bounds, well, judicial review is always available to strike down those overzealous imprecations, but there is no reason to constitutionalize overbroad doctrine when we can take things one case at a time ("judicial minimalism") and save our counter-majoritarian powers for those cases where it counts (avoiding "self-inflicted wounds"). In that light, I suppose, Kelo is just a case of ordrinary rational-basis review (Williams Lee Optical) and Raich is simply a federal preemption case. The fact that Stevens was in the majority is rather irrelevant on this view, because Stevens "won" in cases where black-letter law was affirmed and conservative activism was not furthered, which is not a gain for liberal activists, especially given how old Stevens and O'Connor are. Unless you think both of them can make it until Hillary is elected President, these decisions could be viewed as mere placeholders for the impending JohnRobertization of constitutional law.
Posted by: Michael Winfield at June 23, 2005 08:19 PM