As featured on p. 218 of "Bloggers on the Bus," under the name "a MyDD blogger."

Monday, July 04, 2005

No Legislating from the Bench

As long as the focus is on the Supreme Court these days, it seems to me that the outcry in conservative circles over "judicial activism" is misnamed; they're really mad about "judicial opinions conservatives don't agree with."

I strongly disagreed with the Court's decision in New London v. Kelo (as did many legislators), but the last thing that opinion showed was an example of judicial activism or legislating from the bench. In fact, quite the opposite. The majority refused to strike down a municipal edict allowing them to give someone's property over to a private business. They were, actually, not interfering with a legislative decision. I agree fully with Matthew Yglesias' take:

If we're going to have things like House members voting "365 to 33 late Thursday night in support of a resolution expressing 'grave disapproval' at the court decision," then they should just pass some laws restricting the use of eminent domain. They're the U.S. Congress, after all; they don't need to wait for the courts to bail them out. If this ruling is a big problem, then the status quo it upheld was a big problem three weeks ago, three months ago, three years ago, and three decades ago.

In California, the law states that eminent domain takings cannot occur unless the land in question is in a "blighted area." This kind of statute could be adopted nationwide, and the Court, if they continue their non-activist stance in these matters, would not strike them down. Conservatives that are mad about this ruling should lobby their state and local representatives. I don't think anybody is really that happy about giving over people's homes to corporations, but the courts don't have to be the only recourse. The state houses and the Capitol would work fine.

Incidentally, a Yale professor has crunched the numbers and determined that Justices Thomas, Kennedy and Scalia all voted to overturn existing law the most (pretty much the working definition of judicial activism), while Ginsburg and Breyer did so the least. So much for originalism.