Case brings court fight home

CASCADE, Mont. I assumed as I drove to the airport a week or so ago that it might be possible to escape the madness of Washington while chasing trout in the mountains of Montana, but I was wrong. The announcement of Justice Sandra Day O’Connor’s decision to retire turned out to be a topic of conversation even among the folks who live here and never venture east.

CASCADE, Mont.

I assumed as I drove to the airport a week or so ago that it might be possible to escape the madness of Washington while chasing trout in the mountains of Montana, but I was wrong.

The announcement of Justice Sandra Day O’Connor’s decision to retire turned out to be a topic of conversation even among the folks who live here and never venture east.

The shape of the judiciary and even the Supreme Court, important as they are, have always struck me as issues that haven’t really engaged the man and woman on the street. This time, however, many ordinary Americans see the coming battle over the court as important in a concrete rather than abstract sense and seem to be following things rather more closely than in the past.

Washington commentators characterize the battle as one in which a bullheaded president and his socially conservative allies are hell-bent on creating a Supreme Court majority willing to reverse Roe v. Wade and thwart those who would use the court as a tool in their war on guns, God and capital punishment. What they miss is a much broader and growing feeling that judges these days act as activist allies of a liberal elite trying to win through the courts that which they have failed time and again to achieve through the electoral or legislative process.

Social conservatives have believed for some time that the federal judiciary is out of control, but at least one recent decision seems to have convinced many others that they have at least as much at stake.

Americans have always been wedded to the concept of private property. Fifty-seven percent of us own our homes, and most of the rest aspire to own theirs, which may go far to explaining the shock of a Supreme Court decision expanding the concept of “eminent domain” to empower the state to seize private property from one party and give it to another just to increase tax revenues.

The court’s action and the public reaction to it may focus public attention on the need for more conservative judicial appointees than all the spin doctors, political rhetoric and scholarly articles published in the past decade.

I say this because the court’s decision in Kelo v. City of New London draws the line as clearly as any recent decision between those who share the Founders’ belief in limited government and those who believe that government rather than people should have the final say over just about everything.

Government has of course always been able to condemn and take one’s property for what the Constitution calls a “public use,” and it was by twisting and expanding the definition of what constitutes such a “public use” that the court was able to undermine the very idea of private property in a way understandable to anyone who can read a newspaper or turn on a television.

In the past, the courts have followed the Founders by limiting such “takings” to things such as the need to build highways or provide railway or utility rights of way and the like that benefit the public at large and cannot be completed without acquiring property from private owners and providing them just compensation for it. The current court expanded the concept to include any taking that might enhance the condemning jurisdiction’s revenue base. Thus, the liberal majority in Kelo said it was fine for the City of New London to seize the property of longtime homeowners and turn it over to private developers to build a luxury hotel and health club that would pay more in taxes.

Liberals can make fun of those they call “originalists” for their perceived slavish devotion to the words of the Constitution and the intentions of those who wrote it, but no originalist would ever vote simply to delete the words “for public use” from the Fifth Amendment to the Constitution … which is exactly what Justices Clarence Thomas, Antonin Scalia and O’Connor rightly accused the majority of doing in this case.

So the battle over the court may come down to those who actually believe that Supreme Court justices, in rendering decisions, ought to look to the Constitution and the intent of those who penned it and senators and special-interest groups who believe that the court and those who sit on it should be free to decide cases on the basis of their feelings and instincts, prejudices and whatever might be politically correct on the day they vote.

Kelo demonstrates that a court that can ignore the words of the Constitution is a court that can do anything it wants. Bush’s ace in the hole may be that very few Americans want such a court.

Keene, chairman of the American Conservative Union, is a managing associate with Carmen Group, a D.C.-based governmental-affairs firm (www.carmengrouplobbying.com).