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And justice for all?

This is a page from the original version of Pagan Vigil. There are some formatting differences. Originally published at

What does the call for a "progressive judge" on the United States Supreme Court really mean?

Skimming the internet in the last week or so when I had the time, I've seen many liberals and progressives call for a progressive or at least a left-leaning moderate to replace Sandra Day O'Conner. Given the history of judicial activism by progressive judges, I am not so sure that is a good idea.

I'd like to take some time to explore some of the implications.

Traditionally one of the roles that the Democrat Party has defined for itself is "defender of the little guy." I'm not going to say here whether that claim is merited, but given the decisions of the Supreme Court lately, I do think some questions should be asked.

One of the most recent cases, Kelo v. New London, perfectly illustrates this point. Kelo cites several cases going back all the way to the 1954 Berman v. Parker, which was the case that redefined "public use" to "public purpose." Berman took private property from it's owners and gave it to other private owners, all in the name of urban renewal. By the 1980s, it was generally acknowledged that most of the urban renewal projects made possible by Berman were failures, and "slum removal" usually meant "Negro removal" or "Hispanic removal."

In Kelo, there isn't even the justification of "social engineering." Because Pfizer promised more tax money and more jobs, property was seized. Pfizer isn't the guilty party here though, they didn't ask for and didn't get the property. The City of New London decided to take property and give it to a developer.

The abuse of eminent domain stretching back to Berman does show one thing though, the property rights of the "little guy" take a back seat to the "common good," even if the beneficiaries of the common good are large corporations.

That raises some interesting questions. Of all the reasons that people have been opposing any Bush appointment, the two that I've heard the most are abortion rights and opposing liability reforms. Whatever your feelings on these issues, I have to wonder which of your rights you are willing to sacrifice to preserve the ones you consider important.

The only people I see talking about preserving individual rights are originalists. I think a progressive judge would be more interested in social justice rather than the rule of law. I think individual rights suffer when social justice is the focus.

Most importantly, I think that routine government abuse of power will always focus on those least able to fight back. And that means that the little guy gets it in the end.


On a related topic, there are two very scary implications of Kelo that have been tossed around the internet.

Theoretically, Kelo could be used to justify the seizure of intellectual property like copyrights and patents. There does seem to be some precedent for the government seizing patents, and it is only one small step to assign seized patents to someone who can make better use of them and pay more taxes.

The other (and scarier) implication is forced redistricting. Theoretically, property owners with unpopular politics (or religion or whatever) could be forced to move so that like minded groups would be dispersed over too many precincts to concentrate their voting.

Just something to think about.

Posted: Thu - July 7, 2005 at 06:55 PM

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