Eminent Domain

Richard Epstein is a professor at the University of Chicago Law School and something of a property rights guru. He has written this WSJ piece, posted on Cato, about the Supreme Court. In it, Epstein examines how the Justices make their decisions, looking back at the last term. He first examines their approaches...

[T]he justices oscillate uneasily between two inconsistent approaches. Sometimes they distill the meaning of a disputed provision by making their best independent judgment about its structure and function. So they slap down any government officials who exceed statutory powers. Alternatively, they lament the imprecision of language, doubt their own expertise about social and political complexities, and defer to whatever reading the official gives to the statute that empowers him.

This is generally how statutory interpretation cases go. However, Epstein says that the conservative and liberal wings of the Court do not apply the standards consistently. What is the key to figuring out which way each wing will vote? Epstein knows...

They defer only to the government officials they trust. Otherwise, they read a statute carefully to rein in the authority of officials they don't trust. The two factions don't differ in their philosophy of language, or in their on-again, off-again adherence to the rule of law. Rather, the court's liberal wing profoundly distrusts this president, but has great confidence in the domestic administrative agencies that regulate matters such as the environment. The conservative wing of the court flips over. It willingly defers to the president on national security issues while looking askance at expansionist tendencies of the administrative agencies.

I think Epstein is correct on this point. He uses the Rapanos and Hamdan cases to illustrate the point. Justice Thomas made the exact comparison in his Hamdan dissent...

Those Justices who today disregard the commander-in-chief's wartime decisions, only 10 days ago deferred to the judgment of the Corps of Engineers with regard to a matter much more within the competence of lawyers, upholding that agency's wildly implausible conclusion that a storm drain is a tributary of the waters of the United States...

It's all about who you trust. Do you trust the president or do you trust the Army Corp of Engineers? There's a third option, the Epstein option: Don't trust either of them...

Our Constitution starts out with a presumption of distrust of all government actors, which is why it drew a sharp line between the legislative and executive branches. We can argue until the cows come home whether national security or environmental protection presents the greater threat of executive or administrative misuse. But that ranking really doesn't matter, because there is no reason why the Supreme Court has to defer to overaggressive public officials in either context.

Epstein is calling for the Justices to quit playing dumb on statutory language, even when it means they have to defer to someone they don't like. It's wishful thinking, though. The Justices don't have to do it. They have no reason to do it(aside from their own consciences). What's going to force them? Public criticism? They get that anyway. Epstein may be right on principle, but the reality and politics of the Court will keep that from ever coming to pass.