Sunday, May 03, 2009

Ne Sutor ultra crepidam

The political class is all abuzz with the forthcoming departure of David Souter from the US Supreme Court. As commentators acknowledge, though, his forthcoming replacement by a liberal pragmatist chosen by Obama will do little to change the political mix of the Court. Like will replace like.

Or will it? A reclusive bachelor who affects disdain for Washington, DC, Souter is a mystery man. Indeed, that is how he got his job. George Bush senior nominated him with the idea that he would be a centrist, leaning slightly to the right. Of course, Souter turned out to be a closet liberal. This is a narrative particularly dear to liberal Democrats: benighted conservative, or one thought to be such, sees the light and becomes a liberal. The process is framed as “maturation,” the implication being that anyone who is not a unregenerate yahoo will sooner or later see the error of his conservative ways. Admittedly, the current behavior of Republicans lends a lot of support to the yahoo thesis. Yet it has not always been thus, and doubtless will change in the future, as new types of conservative thinkers come to the fore. Andrew Sullivan is perhaps the best example.

Relatively speaking (well, very relatively) Souter has the reputation of being more in touch with common men and women than his colleagues. Perhaps, but he has some notable eccentricities. Souter eats the same thing for lunch each day: one whole apple—core, seeds and all—and a cup of plain yoghurt, both served on the finest Supreme Court china.

Souter is a notorious skinflint or, as one of his friends put it, the man who “put the ‘c’ in ‘cheap.’” He rarely picks up a restaurant check and regularly lists zero on his end-of-year expense report. Colleagues have noted that he drives around in the same dilapidated car until it runs into the ground. When he was serving as New Hampshire’s deputy attorney general in the 1970s, his vehicle of choice was a broken-down 15-year-old Chevrolet with personalized state government license plates. Other motorists would routinely honk at him and ridicule him for defiling the highway with such a clunker, so that Attorney General Warren Rudman had to implore him to upgrade his ride. Souter then acquired a used Volkswagen Rabbit, followed by an equally sensible Volkswagen Golf, which he apparently continues to drive.

With Souter time seems to have taken a pause, a large one. When he first arrived on the Court in 1990, he had never heard of Diet Coke—although it had been on the market for nearly a decade. In 2003, Souter was attending a friend’s wedding. When another guest joked about getting “The Supremes” to play at the reception, Souter hadn't a clue. He had never heard of Diana Ross and her famous group of the 1960s.

To the best of my knowledge, he has had no documented intimate relationships with women. None, apparently, with men either, yet he is noted for his friendships--presumably mainly with men. He may be one of those individuals, like former Mayor Ed Koch for example, who had had no ascertainable sex encounters. Arguments from silence are by their nature inconclusive. Yet there are signs that Sutor is at least homophile, if not homosexual in the practicing sense. A rumor (as yet unsubstantiated) has it that Souter was in the habit of renting gay porno from a Boston bookstore.

If Souter were gay, his coming out while a Supreme Court Justice would have had an electrifying and beneficial effect. Assuming that he is gay, he could still come out. However, most find it hard to change habits of caution and timidity that have accumulated over a lifetime. After all, look how far he got by being cautious.

The eulogies in the media, at least those that I have read, pass over one regrettable episode. That is Souter’s role in the Kelo decision.

Kelo v. City of New London, 545 U.S. 469 (2005), was a case decided by the Supreme Court involving the use of eminent domain to transfer land from one private owner to another to further economic development. The case arose from the condemnation by New London, Connecticut, of privately owned real property so that it could be used as part of a comprehensive redevelopment plan. In a 5-4 decision the Court held that the general benefits a community enjoyed from economic growth qualified such redevelopment plans as a permissible "public use" under the Takings Clause of the Fifth Amendment.

The Court’s decision drew wide condemnation. Many observers viewed the outcome as a gross violation of property rights and as a misinterpretation of the Fifth Amendment. Applied broadly, the consequence of Kelo would be to benefit large corporations at the expense of individual homeowners and local communities.

As it reached the Supreme Court, Kelo became the focus of vigorous discussion, attracting numerous supporters on both sides. Some 40 amicus curiae briefs were filed in the case, 25 on behalf of the petitioners. Suzette Kelo's supporters ranged from the libertarian Institute for Justice (the lead lawyers) to the NAACP, AARP, the late Martin Luther King's Southern Christian Leadership Conference, and South Jersey Legal Services. The latter groups signed an amicus brief arguing that eminent domain has often been used against politically weak communities with high concentrations of minorities and elderly.

On June 23, 2005, the Supreme Court ruled in favor of the City of New London. Justice John Paul Stevens wrote the majority opinion; he was joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Since the decision was 5-4, the defection of any Justice, such as David Souter, would have changed the outcome.

On June 25, 2005, Justice Sandra Day O'Connor wrote the principal dissent, joined by Chief Justice William Rehnquist, Justice Antonin Scalia and Justice Clarence Thomas. Justice O'Connor objected to the fact that an unelected (therefore voter-unaccountable) private nonprofit corporation was the primary beneficiary of the government taking. As a result, the dissenting opinion suggested that the use of this takings power in a reverse Robin Hood fashion— take from the poor, give to the rich— would become the norm, not the exception. As Justice O’Connor wrote: “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.” Rightly in my view, she held that the decision eliminates "any distinction between private and public use of property — and thereby effectively delete[s] the words 'for public use' from the Takings Clause of the Fifth Amendment."

More broadly, the decision reflected an endorsement of a fatal alliance in American public life. Liberal interventionism was deployed to aid powerful private interests.

In New Lonon the outcome gave little satisfaction to either party. As of June 2008, the original Kelo property is now a vacant lot, generating no tax revenue for the city. A group of New London residents formed a local political party, One New London, to combat the takings. While unsuccessful in gaining control of the New London City Council, they obtained two seats; from this position, they have continued to agitate about the matter. In June 2006 Governor M. Jodi Rell intervened with New London city officials, proposing the homeowners involved in the suit be deeded property in the Fort Trumbull neighborhood so they may retain their homes. In the sequel it seems that nothing is happening on the ground and it appears doubtful whether the redevelopment project will proceed. In fact, with the current recession, it may safely be declared dead.

With the assistance of Justice Souter, however, bad law has been created. As a result of the backlash, many states have begun to take corrective action. Yet the unfortunate effects of the Kelo decision remain.

Logan Darrow Clements, a California developer and libertarian, scooped a similar proposal by New Hampshire libertarians to seize Justice Souter's “blighted” home in Weare, New Hampshire, via eminent domain in order to build a "Lost Liberty Hotel," which he said would feature a "Just Desserts Cafe." Officials of the Libertarian Party of New Hampshire (LPNH) and the Coalition of New Hampshire Taxpayers had been eyeing the Justice's property as the site for a proposed Constitution Park. Then LPNH Vice-Chair Mike Lorrey discovered that Justice Breyer owned an extensive vacation estate in Plainfield, NH, and announced on a New Hampshire Public Radio show The Exchange that LPNH would be pursuing their Constitution Park concept with Breyer's property in mind. A curious footnote is the apparent fact that the Souter family had lost land to a "taking" in the 1950s. Some have hailed Souter for his deference to real-life experience. However that may be, Souter seems to have failed to consult it in his concurrence in the outrageous Kelo decision.

The New Hampshire take-over plans, which turned out to be merely symbolic, nonetheless served to channel public anger. They also tarnished the haloes that admirers had awarded to Souter and Breyer.


PS A note on the title of this blog entry. The Latin writer Pliny recorded that Apelles, the famous Greek painter who was a contemporary of Alexander the Great, would put his pictures where the public could see them and then stand out of sight so he could listen to their comments. A shoemaker (sutor in Latin) once faulted the painter for a sandal with one loop too few, which Apelles corrected. Emboldened by this acceptance of his views, the shoemaker then criticized the figure’s leg. To this Apelles replied that the shoemaker should not judge beyond his sandals, in other words that critics should only comment on matters they know something about. In modern English, we might say “the cobbler should stick to his last,” a proverb that comes from the same incident.

The Scottish surname Souter, which the Justice bears, stems from this Latin word.

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