B and B

A heartening decision -- nine years later

Today, there was a heartening, unanimous, decision from the U.S. Supreme Court.

Nine years ago, Sheila White says, she was made to feel very unwelcome as the only woman working in the maintenance department of a railroad yard in Memphis. And today, the Supreme Court said a jury was right to award her $43,000 for complaining about her treatment.

In a 9-to-0 ruling, the justices sided with Ms. White and against the Burlington Northern and Santa Fe Railway, and in so doing broadened the protections for workers who sue their employers for retaliation after lodging complaints.

Writing for the court, Justice Stephen G. Breyer wrote that "we believe it is important to separate significant from trivial harms." An employee's decision to report discrimination "cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience," he emphasized.

But the court found that what Ms. White went through went beyond the trivial and the annoying.

Not so heartening is that it took nine years for this common sense decision to get made.

The spectre of Alito

The spectre of Samuel Alito on the Supreme Court is extremely worrisome to those who care about the well-being of this country's democracy and a reasonable balance of power between monied interests and the rest of society. With the vote against the filibuster last night in the U.S. Senate, I notice at least a few progressive bloggers are using this occasion to rail against members of the Democratic Party, if not the entire party.

But Alito is a creature entirely of the Republican Party. While perhaps understandable to lash out in a moment of anguish, blaming the Democratic Party (or certain members thereof) is nonetheless completely misguided. It is the Bush administration and its toadies in the GOP that have forced Alito upon us. And it was our inability to convey our supposedly obvious and just cause to the general public, both in November 2004 and now, that has allowed his ascendancy.

Fortunately, many other progressive bloggers are taking a more sober look at the situation, celebrating those who helped in this battle, and resolving to figure out how to do better next time. For as dangerous as he is, Alito is only one vote in one branch of government.

Some more on Alito

So I said I wouldn't post much about the Alito hearings. But I couldn't resist linking to this two-part post by law professor Robert Gordon at TPMCafe. In it, he presents an extensive argument against the merits of Alito's confirmation.

A summary of Gordon's summary:

• Alito won't own up to what are apparently his core beliefs. He recently claimed, essentially, that one can't take certain earlier writings of his seriously since he was currying favor with a potential employer.
• Alito's judicial record is that of "an activist who works steadily to push the law well beyond conventional boundaries of precedent."
• Alito's (and Bush's) agenda for the courts is not popular, requiring them to hide their intentions by avoiding substantive answers to legitimate questions.
• "[E]verything in his background and record suggests he is likely to be extremely deferential to executive power and reluctant to assert a strong judicial role in checking it.
• Alito is regularly hostile to claims of discrimination on the basis of race, sex, age or disability. ... [H]e's even hostile to Congress when it tries to do something about discrimination.

Gordon, of course, has substantial detail behind these points in his posts. His conclusion: "If [Alito] is unwilling firmly and forthrightly to declare his independence from the ideologies and executive authorities he has served his entire career, the Democrats should try to keep him off the Court by filibuster."

I agree. Since Democrats and progressives lost the last election, this may not be a winning battle, but it is one we need to fight. If Alito is confirmed, the consequences will be around long past the time when the results of the 2004 election are ancient history.

On the Alito hearings

I did not watch the confirmation hearings for Samuel Alito today, nor have I seen much media coverage. Nor do I plan to watch the rest of the hearings or much of their media coverage, barring some unforeseen development. I also don't intend to post much about it, since so many other progressive political bloggers have that covered. But that doesn't mean I don't have strong opinions on what to do about someone who likely will be on the Supreme Court for much of the rest of my life. Steve Soto of The Left Coaster provides a nice, if inevitably incomplete, summary.

We live in a time with a White House that will do this country great damage if handed unbridled power by the most political Supreme Court in our history. Alito is the nominee because he will shift the balance of power far to the right of the last court on the one issue that matters most to Bush and Cheney: executive power. If Democrats are not sufficently convinced of Alito's sincerity when he says that no man is above the law, then they should risk the filibuster, even in a futile effort, to stop a man that would hand the car keys to George W. Bush and Dick Cheney, and who as Robert Kuttner says, will be Bush’s enabler.

...

Alito gives the Democrats an ideal opportunity to point out to voters in an election year what the differences are between total GOP control of the government and the country that our fathers fought for. It is far better to fight, educate, and lose, than it is to not fight at all. Let [blogger Matt] Yglesias waive the white flag and then wonder why voters next year didn't see the difference in the parties. I've had enough of that. Against the backdrop of the NSA spying mess and Bush's above-the-law presidency, the Democrats should have no problem showing voters what an Alito boot-on-the-throat would mean for their rights.

Miers and Roberts : machine justices

Digby at Hullabaloo is right on the mark when it comes to analysis of Bush's Supreme Court picks:

Harriet Miers is the official machine justice, a made woman, the one whose only committment and loyalty will be to Karl Rove and George Bush.

...

[W]hat [Bush and Karl Rove] are most interested in is getting someone on the court who will not independently decide that the interests of democracy require that they vote against whatever GOP electoral schemes come down the pike. There can be no daylight on that. Miers can be guaranteed to do what is best for the GOP.

What Digby doesn't mention is that this argument applies not only to Miers, but very likely to Roberts as well, the bulk of whose career was spent in the service of the Republican party.

Of course, as we learned in December 2000, there already were 5 Supreme Court justices ready to perform this role. All that has happened now is that the reign of the machine justices has been extended by two or three more decades.

Newman on Roberts: an optimistic take

Labor lawyer Nathan Newman, whose views on Supreme Court issues I have come to place deep trust in over the last couple years, has posted his thoughts about John Roberts, Bush's Supreme Court nominee. He comes away with an optimistic attitude (emphasis his).

I've actually had a chance to read through Roberts' hearings when he was up for the Court of Appeals and I have to admit I feel (relatively) more hopeful.

...

[T]he most likely possibility is that he won't be surprising and here's my bet on how he will perform from the evidence. In general, he will be less of a judicial activist than O'Connor in both bad ways but also potentially good ways.

Where there is no constitutional issue, he will unquestionably interpret statutes in a conservative manner, and where there is ambiguity in a statute, I am sure that Roberts will likely always take the interpretation that favors corporate and rightwing interests. But O'Connor was no different as a dependable vote for business interests.

But reading his decisions and his statements in the hearings, Roberts really does seem to believe in deferring to elected government, which is probably not surprising for someone who spent so much of his career representing governments arguing on behalf of courts not overriding their power.

...

So to the extent that Roberts sticks to these principles, he will be a conservative Justice but not one that will use his thirty years on the bench to block a lot of progressive legislation from the bench.

Again, he may be a raving activist lunatic beneath the hood, but on the evidence he may be exactly what Bush says he is, a judge who won't legislative from the bench. If that's the compromise that Dems have extracted through the threat of a filibuster, I'll take that as a small victory.

If Newman's optimistic analysis ends up being correct, then that is far more than a small victory. That is a giant leap. (Though it's sad that keeping the court about the same ideologically, when it is already quite conservative, is such a great victory.)

Newman points out that he still thinks Democrats should filibuster Roberts, presumably due to reasons he gave in a post yesterday (emphasis his again):

So if his career is one of years of political hack partisanship, sprinkled with a few years acting as a well-paid hack on behalf of corporate interests, why should we believe Roberts has the temperment to be an independent Justice?

...

If the words Roberts wrote for all his clients don't reflect work upon which he should be evaluated, then the two years on the bench is too little experience to be confirmed.

And if all John Roberts can say is, sorry, I've been a partisan hack for twenty-five years, so I don't have any vision that I can talk about -- well, that's not good enough either and he should be rejected.

Hopefully the confirmation hearings will shed more light on which of these interpretations of Roberts, if either, is the correct one.

Cronies and Corporations

Bush's selection of John Roberts for the Supreme Court should not be a surprise. In the use of his power, Bush really only cares about two things: his cronies and his favorite corporations. John Roberts represents both of those, in abundance, having been a loyal Republican apparatchik and corporate lawyer for his whole career.

Ok, Bush also cares about a third thing, if only out of necessity: not pissing off the fundamentalist crowd too much. That ruled out Alberto Gonzales for now. I suspect he'll get another chance though.

As could be expected, Bush's nominee's history gives every indication that he will be a protector of Big Money and Big (secret) Government at the expense of the average citizen of this country. I hope to hear differently during the confirmation hearings. But I don't expect to.

Kelo revisited

In trying to explain why the Supreme Court decision in the recent Kelo eminent domain case was wrong, Express-News columnist Jonathan Gurwitz illustrates why it was right.

He starts off lauding Justice Sandra Day O'Connor's vociferous dissent:

Judicial opinions are often dry and pedantic exercises in jurisprudence. O'Connor's dissent in Kelo, however, is a clear warning for all American citizens and a wake-up call for lawmakers in state capitols and in Washington.

"Under the banner of economic development," O'Connor writes, "all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded — i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public."

In contrast to Gurwitz, I see this much-publicized statement of O'Connor's as overly alarmist and misleading, as if the Kelo decision represented a great departure from previous use of eminent domain. For many decades, governments have had the power to seize private property from individuals, with "just compensation," and then do as they wish with it, including handing it over to other individuals. All that was needed was the say the magic word "blight," as Kevin Drum pointed out a few weeks ago:

[T]he definition of "blighted" has been pretty elastic for a long time. In Los Angeles, the poor-but-not-especially-blighted Chavez Ravine was condemned in the early 50s for a public housing project, but eventually the land was turned over to Walter O'Malley in order to build the privately owned Dodger Stadium. Similarly, in the early 90s, the Texas legislature created a special agency for the sole purpose of condemning land in Arlington so that the city could build a sparkling new stadium for George Bush's Texas Rangers. The Rangers were given control over the stadium and its surroundings plus an option to buy it later at a sweetheart price.

So the Kelo decision didn't change anything fundamental. On the contrary, if the Supreme Court had ruled as O'Connor would have liked, they would indeed have changed something very fundamental. They would have usurped the power to decide what is an appropriate public use away from the representatives of the people.

Despite his praise for O'Connor's alarmist views on this decision, Gurwitz apparently recognizes that it made some sense. Further down, he says:

Writing for the majority, [Justice] Stevens allows, "Nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power." While [Justice] O'Connor correctly sees this as an abdication of the Supreme Court's responsibilities, it does offer a legislative way out of this public takings wilderness.

Despite his instinctual unease, Gurwitz does appear to get the basic point of the majority decision: "a legislative way out."

Exactly!

Amazingly, Gurwitz concludes by actually shooting down O'Connor's alarmist opinion. Although I am not sure he realizes he is doing so.

As O'Connor succinctly notes, "Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

Nothing, that is, other than the ability of elected officials to correct the opinion of five Supreme Court justices.

I would have put it as "Nothing, that is, other than the ability of elected officials to fulfill their responsibility to the public, as our system of government is designed." But I'll take what I can get. He's on the right track.

Justice O'Connor retiring

First reaction when I saw the news:  "Oh shit!"

UPDATE (11:40 A.M.):  Second thought:  Good riddance to a key player in one of the most shameful decisions made by the Supreme Court in modern times.

Judicial activists lose one

The Supreme Court issued a controversial, 5-4, decision today on whether local governments can seize private property under eminent domain and hand the property over to a private entity for economic development.

The Supreme Court today effectively expanded the right of local governments to seize private property under eminent domain, ruling that people's homes and businesses -- even those not considered blighted -- can be taken against their will for private development if the seizure serves a broadly defined "public use."

In a 5-4 decision [in the Kelo v. New London, Conn. case], the court upheld the ability of New London, Conn., to seize people's homes to make way for an office, residential and retail complex supporting a new $300 million research facility of the Pfizer pharmaceutical company. The city had argued that the project served a public use within the meaning of the Takings Clause of the Fifth Amendment to the Constitution because it would increase tax revenues, create jobs and improve the local economy.

The immediate impact of this decision is disquieting.  Why should governments have the power to seize people's homes?  But governments do have that power, written right into the Fifth Amendment:  "nor shall private property be taken for public use, without just compensation."  So as long as just compensation is provided and that the takings is for public use, governments can apparently seize whatever they want—at least under the Constitution.  And they've been doing so since the days of the founding fathers.

The real issue in this case was who gets to determine what is a "public use":  elected legislative bodies? or the courts?

The decision by the majority of the Supreme Court is, as I see it, a fundamentally non-activist decision.   In determining what a "public use" is, the Supreme Court deferred to the judgement of elected officials.  Legislative bodies more closely represent the people, and thus should be in better tune to what constitutes an appropriate public use.

Writing for the majority, Justice John Paul Stevens said the case turned on the question of whether New London's development plan served a "public purpose." He added, "Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field."

The four justices in the minority supported an activist decision, that would have the unelected courts imposing their view of "public use."  Who were those four?  The three conservative heroes—Scalia, Rehnquist, and Thomas—together with usual swing justice Sandra Day O'Connor.  (Today the swing justice was Anthony Kennedy, who supported with the four more liberal members of the Court in issuing their non-activist decision.)

I have a hard time seeing how this case is much different, on the surface, from using eminent domain for urban renewal.  And so today's decision is just a reaffirmation of the fifty-year old decision that permitted that.  If anything, today's decision made eminent domain a more equitable process, since now government can seize the land of more than just poor people.  (If local governments abuse their broad powers of eminent domain, there are plenty of ways this can be dealt with, as discussed in section III of this amicus brief from the American Planning Association.)

The Kelo v. New London opinions illustrate how conservative jurists are the true judicial activists these days.  I certainly do not want Antonin Scalia and Clarence Thomas and their ilk deciding what is an appropriate public use.

UPDATE (6:11 P.M.):  Nathan Newman explains further why this was a very reasonable decision.

UPDATE (6-24, 12:16 P.M.):  More reasoned opinions on the Kelo decision from Matt Yglesias and Scott Lemieux.  In particular, Matt Y. writes:

If America wasn't a totalitarian dystopia yesterday, then it isn't going to be one tomorrow in light of this ruling. Nothing has changed. Perhaps you think it's bad that nothing has changed, but it's not really the moment to start pulling your hair out. It probably is the moment to start paying closer attention to City Council elections which many people, myself included, tend not to scrutinize much. Those people have real power and it's worth paying attention.