Mending Mistakes by the High Court

Liberals retain an inherent rhetorical advantage in arguing about legal cases before the US Supreme Court. When the current state of “settled law” is inconvenient for the Liberal agenda, Liberals have no problem arguing that the US Constitution should be a “living document” adapting to new exigencies. Those old rulings and precedents should not stay the hand of a modern court. On the other hand, if the current state of settled law favors Liberal positions, they criticize Conservatives for wanting to change previous US Supreme Court decisions. The result is a ratcheting effect. Liberal-activist victories are ensconced as permanent fixtures and immutable law, while Conservative-strict-constructionist victories are always provisional, subject to review and reinterpretation.Despite Conservative reverence for precedent, even Conservative jurisprudence recognizes that precedent is less constraining on the Supreme Court than it is in lower courts or legislatures. If a legislature gets a law wrong, it can always enact a new one. If a lower court interprets the law incorrectly, higher courts have an opportunity to over rule it. If the US Supreme Court gets it wrong, there is little recourse. Except in the extreme and difficult case of a Constitutional Amendment, the response by elected officials can at best be made along the margins. The US Supreme Court is the primary institution for correcting previously incorrect decisions. If not, the country would be burdened with incorrect decisions forever. Schools might still be segregated if the “separate but equal” interpretation of the Fourteenth Amendment in Plessy v. Ferguson could not have been overturned by a subsequent Court decision in Brown v. Topeka Board of Education.

The time between when the US Supreme Court makes an incorrect decision and later has an opportunity to correct it can be very long, many years or decades. This inertia is salutary. We would not want US Supreme Court jurisprudence flapping in the wind responding to every shifting judicial breeze. Legislatures can sometimes mitigate some of the more extreme inequities associated with bad Court decisions.

Recently, in a 5-4 decision, the US Supreme Court in Kelo v. New London extended the reach of eminent domain, allowing governments to seize private land not only for public use, but to transfer the land to private use for government convenience. The decision has largely been panned. In response, Congress this week passed by a strong bi-partisan 231-189 majority (192 Republicans for, 31 against, 39 Democrats for, 157 against) an amendment to an appropriations bill that would withhold federal funds from any project that uses this extended power to seize private land. The appropriations bill covers spending by the Departments of Transportation, Treasury, and Housing and Urban Development [1].

Despite any pleasure derived by circumventing an incorrect Court decision, Conservatives should always be a little wary against such federal bullying of state and local governments, since it undermines the spirit of federalism. By-and-large many matters should be left to the discretion of local governments. However, one can be excused in this case because the federal bullying is to mitigate the bullying of private land owners by state and local governments. Such are the compromises that must be made when the Supreme Court gets it wrong, way wrong.

[1] Allen, M. and C. Babington, “House Votes to Undercut High Court on Property: Federal Funds Tied to Eminent Domain,” Washington Post, July 1, 2005, A01.

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