Supreme Court vs. Free, Civil Society

There's no point in covering Raich and Kelo, they've been done to death. My favorite posts can be found here and here (in fact, Radley had several good posts and links on each). However, there is something to note: Supreme Court Justices nominated by Bill Clinton have been on the wrong side too many issues, while Republicans hit and miss.

Justice	Nominated by	Vernonia	Raich	Kelo
Rehnquist	Nixon/Reagan	Majority	Minority	Minority
Scalia	Reagan	Wrote majority	Concur majority	Minority
Kennedy	Reagan	Majority	Majority	Majority, Concurring
Thomas	George HW Bush	Majority	Minority, Concurring	Minority, Concurring
Ginsburg	Clinton	Majority	Majority	Majority
Breyer	Clinton	Majority	Majority	Majority
O'Connor	Reagan	Wrote minority	Wrote minority	Wrote minority
Stevens	Ford	Minority	Wrote majority	Wrote majority
Souter	George HW Bush	Minority	Majority	Majority

In the table, red corresponds to having been nominated by Bill Clinton (D), blue corresponds to having been nominated by Ford (R), Reagan (R), or GHW Bush (R). I changed the "good" side of the decisions to green while the "dark" side of the decisions were left in their original color. Note that none of the reds were changed to green, and only one of the 7 blues was consistently bad. Also note that I used the traditional colors rather than the CNN state colors (if it wasn't CNN who decided that Blue = Democrat, who was it?).

What I mean by "good" is "decisions that are consistent with a free society". In Vernonia, Justice O'Connor delivered this gem:

It cannot be too often stated that the greatest threats to our constitutional freedoms come in times of crisis.

I could have gone either way in Vernonia because (a) the students could avoid the search by staying out of taxpayer-funded extracurricular activities, so (b) I considered it a point of democracy that people ought to be able to do what they want with their own money, including tie strings to it. However, the real problem with Vernonia was one that Ayn Rand warned about: in a mixed economy, there are going to be conflicts between rights and the "public good". Better to jettison the mixed economy if you wish to hang on to the rights (her comments were with regard to the free speech movement and Berkeley). In a private school, there is no question that the school administrators can do what the parents want them to do, whereas in a public school, you have a clash between the rights of children to be free from searches and the rights of taxpayers and parents to direct their schools and money. That's the foundation of any democracy - yet, majority rule is always going to work in opposition to minority - including individual - rights. In Vernonia, as a (small-d) democrat, I go with the majority; as a (small-l) libertarian, I go with the minority.

Justice O'Connor scored again and again in Raich and Kelo. Her dissent in Raich hits several excellent points. But this from Kelo demonstrates no small understanding of what is at stake:

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. “[T]hat alone is a just government, ”wrote James Madison, “which impartially secures to every man, whatever is his own.” For the National Gazette, Property, (Mar. 29, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland et al. eds. 1983).

Thomas, to his credit, was also on the right side in Raich and Kelo, but not Vernonia. One wonders what he might do if he had it to do over again - thank God he is starting to drift occasionally from his attachment to Scalia. Scalia, the "originalist", seems to be consistent: anti-drug. Would Rehnquist vote the same way as Scalia in Raich were it not for his own bout with cancer? Stevens, Souter, and Kennedy form the anti-[classical] liberal core of the Court - we can only hope they will retire ... and soon!

This is why I give money to IJ - let's hope they can fight it out again and get a reversal to Kelo and Raich, at least.