Here’s a great analysis of how Roberts could become part of a new “Gang of 3” on the Court:
Thus, the possibility is a Court in the new Term starting in October that has Scalia and Thomas, joined somewhat loosely by Rehnquist, on the most conservative wing, Justices Souter, Ruth Bader Ginsburg and John Paul Stevens on the most liberal wing, and Roberts somewhat loosely aligned in the center with Kennedy and Breyer.
It’s all tea leaves at this point, but this is interesting nonetheless.
There are a couple of good behind-the-scenes articles today on how the White House, Congress, and outside groups are prepared to react in the event of a Supreme Court retirement and subsequent nomination of a new justice. One conservative group, the Committee for Justice, “plans to feed research to conservative bloggers so they can fact-check and counter opponents’ claims,” according to the Washington Post. I was struck by the reference to bloggers – at the time of the last nomination, in 1994, the Web barely registered in our culture. The next nomination will be the first of the Internet Age.
Anyway, a retirement seems increasingly unlikely this year, especially given Justice Thomas’s remark yesterday that the Court’s recent term ended as “winds of controversy swirled about the Court’s decisions and, unfortunately, about the imagined resignations.” I’ve been annoyed by the media’s breathless speculations, both this week and two years ago, over non-existent retirements. And it would be sad if someone retired now, when the Court is achingly close to breaking the record of the longest period of time without a change in membership. The current record is just over 11 years, from February 3, 1812 (the arrival of Joseph Story) to March 18, 1823 (the death of Henry Brockholst Livingston). Since Stephen Breyer joined the Court on August 3, 1994, the record would presumably be broken around September 15, 2005. The new term doesn’t begin until the first Monday in October, so theoretically Rehnquist or O’Connor could announce his/her retirement now, I guess, but not make it effective until the second half of September. But that seems to me like cheating.
Meanwhile, poor Justice Breyer has been the junior justice for 11 years. That’s 11 years of answering the door. He must be sick of it. If anyone’s looking forward to a new justice, it would be him.
I didn’t think this day would come, but today I find myself agreeing with Justices Thomas, Scalia, and Rehnquist (and O’Connor) and think that the more liberal-minded justices (Stevens, Ginsburg, Souter and Breyer, and sort of Kennedy) issued a really asinine decision this morning.
The Court ruled in Kelo v. New London, 5-4, that governmental entities can take private homes for private economic development. The “takings clause” of the Fifth Amendment states: “nor shall private property be taken for public use, without just compensation.” A governmental entity has always been allowed to take someone’s private property and provide compensation for doing so, but only if it’s for a “public use” – a highway, a railroad, etc. (There are more examples, but I can’t think of any – I’m far from an expert on the takings clause.) This morning, in an opinion by Justice Stevens (who’s usually one of my favorites), the Court broadly interpreted “public use” and stated that private economic development can be considered a public use if a government entity thinks it is.
What’s weird is that this decision can be interpreted, in one way, as pro-corporation. Meanwhile, Thomas, dissenting, writes, “This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a ‘public use.'”
FYI, Kennedy agreed with the majority, but only based on the specific circumstances of this case. It’s possible that if the facts were a bit different, the decision might have gone the other way.
I don’t know what on earth the majority was thinking with this one.