An Eagle Eyed SCOTUSblog reader
Notes in a comment to the blog that Justice Thomas’s Kelo dissent inadvertently refers to the Court’s forthcoming ruling in the Castle Rock case, as follows:
There is no justification, however, for affording almost insurmountable deference to legislative conclusions that a use serves a “public use.” To begin with, a court owes no deference to a legislature’s judgment concerning the quintessentially legal question of whether the government owns, or the public has a legal right to use, the taken property. Even under the “public purpose” interpretation, moreover, it is most implausible that the Framers intended to defer to legislatures as to what satisfies the Public Use Clause, uniquely among all the express provisions of the Bill of Rights. We would not defer to a legislature’s determination of the various circumstances that establish, for example, when a search of a home would be reasonable, see, e.g., Payton v. New York, 445 U.S. 573, 589—590 (1980), or when a convicted double-murderer may be shackled during a sentencing proceeding without on-the-record findings, see Deck v. Missouri, 544 U.S. ___ (2005), or when state law creates a property interest protected by the Due Process Clause, see, e.g., Castle Rock v. Gonzales, post, at __; Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576 (1972); Goldberg v. Kelly, 397 U.S. 254, 262—263 (1970).
This is amusing and allows us to read the tea leaves for Monday’s decisions.
For the February sitting, Souter and Scalia have not written and only Van Orden/McCreary remains. However, Souter wrote two January decisions plus probably Castle Rock (see below) meaning that we probably have a majority for both Ten Commandments cases upholding the Ten Commandments, Stevens, Ginsburg, Breyer and Souter dissenting.
For the March sitting, Souter, Scalia, Thomas and Rehnquist remain for Castle Rock, Grokster, and Brand X. However, apparently Gonzales won in Castle Rock, so we can suspect that Souter will be writing, meaning that the conservatives will probably get Grokster and Brand X (I suspect Rehnquist might take Grokster, perhaps the key decision of the term). If true, this is very bad news for both Grokster and Brand X.
For April, it’s unclear who will get Bell.
Comment by Adam — June 23, 2005 @ 12:17 pm
Kelo v. City of New London, Decision!
After writing so much about Kelo v New London here and here, I’m deeply disappointed in the decision by SCOTUS. I…
Comment by Mover Mike — June 23, 2005 @ 12:32 pm
The blurb in Thomas’s dissent doesn’t necessarily mean that the court decided in Gonzales’s favor. Its a neutral statement. They could have decided that the Colorado TRO law does not create a property interest. All he did was restate the issue of that case, he didn’t give any reason to think the court went one way or the other. In light of the fact that 3 of the 4 justices remaining are likely to vote in Castle Rock’s favor, it seems to me that the court is more likely to go that way than in Gonzalez’z favor.
Comment by Fern R — June 23, 2005 @ 12:58 pm
While Thomas’s referrence in dissent is on its face neutral, given the general rhetorical tone of the dissent, which makes a point of repeatedly citing liberal opinions with which he doesn’t agree to show how Kelo is wrong, and the fact that if there was deferrence to the government reading of property rights that Gonzales would lose (and clearly there is not deferrence, at least), I think that it is quite likely that Souter will be writing the Castle Rock opinion and that Thomas will be in dissent.
I think Thomas was always a favorite for Grokster or Brand X given his penchant for “technical issues”, but I wouldn’t be surprised if these decisions are less ideological than many this term.
Comment by ohwilleke — June 23, 2005 @ 1:12 pm
Of course, Thomas did cite that case as an example of the court not-deferring to the legislature’s decision about whether a property right was created, which certainly *seems* to make Gonzales’s victory more likely, unless the court did something curious like announcing that it was not deferring on the question and then agreeing with the legislature anyway.
Comment by Will Baude — June 23, 2005 @ 1:24 pm
As I said in the thread below, the Roth case which Thomas also cites found that there wasn’t a due-process violation.
Comment by phil — June 23, 2005 @ 1:55 pm
ohwilleke–If Castle Rock goes in favor on the City and not Gonzales, then Thomas’s opinion will not have made “a point of repeatedly citing liberal opinions with which he doesn’t agree.” He will have cited two opinions with which he may not agree (Payton and Deck) and two with which he does agree (Castle Rock and Roth). And he will have put them in exactly that order.
Comment by Fern R — June 23, 2005 @ 2:30 pm
Oops. I missed Goldberg. That would make three cases holding that there was a due process violation and two finding that there was not (if Castle Rock goes in favor of the city). Still not a list of cases Thomas disagrees with (again assuming that Castle Rock goes to the city).
Comment by Fern R — June 23, 2005 @ 2:35 pm
This isn’t exactly on-point to this post, but I think it’s a very telling side-note to today’s opinion. Did anyone else notice Thomas citing the Lochner majority opinion APPROVINGLY? He cites Holmes’ famous “Mr. Herbert Spencer” line, but then says “but see id. at 58-62 (Peckham, J., for the Court). Gusty, to say the least. After Raich and Kelo are we perhaps finally seeing the Natural Law scholar in Thomas bubbling to the surface?
Comment by Law Clerk — June 23, 2005 @ 6:44 pm
I’ve not read the CA10 decision on review in Castle Rock and don’t have time to check on it this afternoon, but because the municipality is the petitioner it wouldn’t surprise me at all to discover that CA10 deferred to some state or municipal lawmaking entity’s legal conclusion to the effect that the respondent possessed a state-created property entitlement, pursuant to the TRO that the police in that case allegedly ignored, not exactly to have the TRO immediately enforced via police assistance in response to respondent’s 911 calls (an entitlement sufficient to render DeShaney immaterial) but at least to some explanation of why such assistance wasn’t being, or hadn’t been, provided (a holding that would have been the predicate for a further conclusion that respondent had been deprived of this entitlement without procedural due process, perhaps citing Logan v. Zimmerman). And I’d not be surprised, if these guesses hold up, to see the Chief, no fan of the procedural due process holding of Logan (recall the oral argument in Baker v. GM) delivering, possibly as the final ruling of his chief justiceship, an opinion holding that CA10 erred in treating the state entity’s view that such TROs confer entitlements of some kind as sufficient to give respondent what the 14th amendment contemplates when it uses the term “property.” Even if a cause of action for administrative relief constitutes property for 14th amendment procedural due process purposes, the Chief might say, in a tone that casts doubt on Logan’s continuing vitality, a “right” to have the municipality explain why it isn’t responding at once to a plea for enforcement of a TRO is too gossamer a thing to constitute “property” within the 14th amendment’s meaning. Or so I’d predict if I had to predict anything…
Comment by Larry Tribe — June 24, 2005 @ 1:22 pm
I have to admit that, from the layman’s perspective, one of the more absurd aspects of the “substantive due process” doctrine - were that not a sufficiently contradictory proposition - is the logical need for the antomyn “procedural due process”. And with that, I will ajourn for a cup of coffee-flavoured Starbucks coffee.
Comment by Simon — June 24, 2005 @ 3:34 pm
Simon–Rest assured that there are many within the legal community that agree with you. In light of the fact you’ve probably been banging your head against the wall while pondering substantive due process, I’ll withhold my comment regarding your “coffe-flavored Starbucks” drink.
Comment by Fern R — June 24, 2005 @ 7:41 pm
Whoever named “substantive due process” did the doctrine a diservice. Both our dictionaries and our legal traditions well support the notion that if the government seeks to take away your life, liberty, or property it need provide not only a hearing and an opportunity to be heard, but also a rule of decision linked to a sufficiently weighty state interest. Even in the colloquial sense, it would deny you “due process” to lose custody of your child because you have red hair or go to jail because your name begins with a G, even if you had a hearing, a lawyer, the opportunity to call witnesses, etc. “Substantive due process” doctrine does nothing more than play out that rule in a variety of more complicated and closer real world situations.
Comment by Andy Siegel — June 27, 2005 @ 10:00 am
Hmm. Guess I was right. The list in Thomas’s opinion was a mixed bag of cases that he agreed with and disagreed with.
Comment by Fern R — June 27, 2005 @ 12:04 pm