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Friday, August 26, 2005
Law - Justice Stevens discusses "the gap that sometimes lies between a judge's desire and duty".
Linda Greenhouse of the NY Times had an interesting front-page story yesterday headlined "Justice Weighs Desire v. Duty (Duty Prevails)". Some quotes:
WASHINGTON, Aug. 24 - It is not every day that a Supreme Court justice calls his own decisions unwise. But with unusual candor, Justice John Paul Stevens did that last week in a speech in which he explored the gap that sometimes lies between a judge's desire and duty.Addressing a bar association meeting in Las Vegas, Justice Stevens dissected several of the recent term's decisions, including his own majority opinions in two of the term's most prominent cases. The outcomes were "unwise," he said, but "in each I was convinced that the law compelled a result that I would have opposed if I were a legislator."
In one, the eminent domain case that became the term's most controversial decision, he said that his majority opinion that upheld the government's "taking" of private homes for a commercial development in New London, Conn., brought about a result "entirely divorced from my judgment concerning the wisdom of the program" that was under constitutional attack.
His own view, Justice Stevens told the Clark County Bar Association, was that "the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials." But he said that the planned development fit the definition of "public use" that, in his view, the Constitution permitted for the exercise of eminent domain.
Justice Stevens said he also regretted having to rule in favor of the federal government's ability to enforce its narcotics laws and thus trump California's medical marijuana initiative. "I have no hesitation in telling you that I agree with the policy choice made by the millions of California voters," he said. But given the broader stakes for the power of Congress to regulate commerce, he added, "our duty to uphold the application of the federal statute was pellucidly clear." * * *
While Justice Stevens is the only member of the court to have addressed the issue in a speech, others have used their written opinions to acknowledge the conflict between a judge's policy preferences and decisions the judge may feel forced to render because of legal precedent or judicial philosophy.
In March, for example, Justice Sandra Day O'Connor, whom Judge Roberts would succeed, dissented from the court's opinion that declared unconstitutional the execution of those who commit capital murder before the age of 18.
"Were my office that of a legislator, rather than a judge, then I, too, would be inclined to support legislation setting a minimum age of 18," Justice O'Connor wrote in her dissenting opinion in Roper v. Simmons in the course of explaining why, in her view, the Constitution did not support that outcome.
Posted by Marcia Oddi on August 26, 2005 09:07 AM
Posted to General Law Related