Adieu, Justice Stevens

Thomas Sowell pulls no punches when examining the jurisprudence of retiring Justice John Paul Stevens. Sowell, who is no fan of Stevens to be sure, unleashes his scorn on Stevens by focusing largely on the Kelo decision:

Justice Stevens was on the High Court for 35 years-- more's the pity, or the disgrace. Justice Stevens voted to sustain racial quotas, created "rights" out of thin air for terrorists, and took away American citizens' rights to their own homes in the infamous "Kelo" decision of 2005.

The Constitution of the United States says that the government must pay "just compensation" for seizing a citizen's private property for "public use." In other words, if the government has to build a reservoir or bridge, and your property is in the way, they can take that property, provided that they pay you its value.

What has happened over the years, however, is that judges have eroded this protection and expanded the government's power-- as they have in other issues. This trend reached its logical extreme in the Supreme Court case of Kelo v. City of New London. This case involved local government officials seizing homes and businesses-- not for "public use" as the Constitution specified, but to turn this private property over to other private parties, to build more upscale facilities that would bring in more tax revenues.

Justice John Paul Stevens wrote the Supreme Court opinion that expanded the Constitution's authorization of seizing private property for "public use" to seizing private property for a "public purpose." And who would define what a "public purpose" is? Basically, those who were doing the seizing. As Justice Stevens put it, the government authorities' assessment of a proper "public purpose" was entitled to "great respect" by the courts.

Let's go back to square one. Just who was this provision of the Constitution supposed to restrict? Answer: government officials. And to whom would Justice Stevens defer: government officials. Why would those who wrote the Constitution waste good ink putting that protection in there, if not to protect citizens from the very government officials to whom Justice Stevens deferred?

The problem of course is that with Justice Steven's riding into the sunset this summer, we are likely to get someone on the Court who is as bad, if not worse, than Stevens' deference to government. But in reality--does it really matter. Swapping one liberal for another liberal--even if more liberal than Stevens--is not going to matter a great deal.

The Court is facing significant battles in the next few years and with the current balance, the future of the Court's rulings ride more on Justice Kennedy than on Justice Stevens. It is Justice Kennedy's replacement that will be key to the Court so if I were the GOP, I would put up a minor fight just to make the point of the nominee's liberal credentials but not make a major debacle of fighting a battle whose result is largely pre-ordained.