July 17, 2019
By Timothy Sandefur
Supreme Court
Justice John Paul Stevens, who died yesterday at the age of 99, will likely
be remembered principally for his abysmal decision in the 2005 eminent domain
case of Kelo v. New London, but in his earlier years on
the Court, his rulings were marked by a healthy skepticism toward the danger of
overarching government.
In 1984, for
example, Stevens dissented in a case called Hoover v. Ronwin that challenged the power of
regulators who exploited licensing laws to protect themselves from competition.
The lawsuit was an antitrust case against the Arizona Committee of Bar
Examiners, which limited the number of people who could pass the bar, not based
on their competence as lawyers, but simply in order to ensure that existing
lawyers didn’t face too much competition. The Court dismissed the case, holding
that the state government had blessed this monopolistic arrangement, and that
was enough. But Stevens disagreed, pointing to the dangers inherent in
occupational licensing laws. “Private parties have used licensing to advance
their own interests in restraining competition at the expense of the public
interest,” he wrote. Thus “whenever government delegates licensing power to
private parties whose economic interests may be served by limiting the number
of competitors who may engage in a particular trade,” courts should be wary. His
opinion would be vindicated to some extent in the 2015 case of North Carolina Dental Board v.
FTC.
Even more striking
were Stevens’s views on the “rational basis test.” That’s the legal test invented
in the 1930s to determine whether a restriction on private property rights or
economic freedom is constitutional. (Other kinds of rights, such as free
speech, get far stronger protections.) The rational basis test is tilted toward
the government, so that a person challenging such a law must prove that it has
no reasonable connection to a “legitimate government interest.” The rational
basis test embodies the concept of “judicial restraint”—meaning that courts
will stand back and allow government officials to do whatever they think will
serve some public good.
In the 1993 case
of FCC v. Beach Communications, Justice Clarence Thomas—then
new to the bench—described the “rational basis test” in perhaps the most
extreme terms ever used. Under that test, Thomas wrote, the actual facts of a
lawsuit are “constitutionally irrelevant,” and judges must uphold the
government’s actions if “any conceivable set of facts” can be imagined that
would justify them. In other words, courts should ignore what actually
happened and back the bureaucrats if it’s at all possible that their acts were
justifiable in some imaginary alternative universe.
Stevens demurred.
“This formulation sweeps too broadly,” he wrote, “for it is difficult to
imagine a legislative classification that could not be supported by a
‘reasonably conceivable state of facts.’ Judicial review under the ‘conceivable
set of facts’ test is tantamount to no review at all.” He cited one of his earlier opinions that made the same point: “if
any ‘conceivable basis’…will repel a constitutional attack,” he wrote,
“judicial review will constitute a mere tautological recognition of the fact
that [lawmakers] did what [they] intended to do…. I believe the Constitution requires
something more than merely a ‘conceivable’ or a ‘plausible’ explanation” for
its actions.
But as the years
went by, Stevens seemed to abandon his skepticism toward the extreme
pro-government bias of the “rational basis test,” and in 2005’s Kelo decision,
he used that test to conclude that state officials could seize land belonging
to several homeowners in a quaint Connecticut neighborhood in order to transfer
their property to private developers to build luxury condominiums
instead—despite the U.S. Constitution’s requirement that all takings of
property serve a “public” instead of a private use.
Since “promoting
economic development is a traditional and long-accepted function of
government,” he wrote, government officials could condemn the homes of Susette
Kelo and her neighbors as part of a construction project that was meant to
benefit the local economy. All the “public use” requirement of the Constitution
really meant was that officials believed the project might serve some public
benefit. That, of course, rendered all property subject to government seizures,
since government officials can always be expected to assert that their actions
serve the public good. As Justice Sandra Day O’Connor noted in her powerful dissent, Stevens’s ruling meant that
“nothing is to prevent the State from replacing any Motel 6 with a
Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”
Kelo led to a nationwide
outcry—bipartisan majorities in Congress denounced it, and several states
passed new laws to restrict the use of eminent domain. Yet Stevens remained
unrepentant. It was “the most unpopular opinion that I wrote,” he admitted in
his memoirs, but he insisted that it “adhered to the
doctrine of judicial restraint.” (That, of course, is true.) He believed that
matters relating to private property rights “should be determined by the people
through their democratic participation in enacting state laws”—despite the fact
that the purpose of the Constitution was to limit the power of democratic
majorities and to protect private property, no less than free speech or freedom
of religion, against the tyranny of the majority.
In a career that
spanned more than three decades, John Paul Stevens wrote dozens of important
decisions, many of which vindicated constitutional rights and protected
individual freedoms against the dangers of overweening government. And his
early skepticism toward the rational basis case was well aimed. It’s
unfortunate that his diligence flagged so notably in the Kelo case—and
that his legacy will forever be tied to the homeowners whose injuries he and
his colleagues left unredressed.
Timothy Sandefur
is the Vice President for Litigation at the Goldwater Institute.
