Topic: Professions & Institutions

Leave Souter Alone

It is worth reflecting upon why those who view themselves as populists, humanists and progressives, supposedly our kindest and most empathetic citizens, so quickly resort to nasty and vindictive tactics when their ideals are thwarted. A case in point is the impressively named Logan Darrow Clements of Los Angeles, who is spear-heading a national attempt (quixotic though it almost certainly is) to take Supreme Court Justice David Souter’s farm house in New Hampshire away from him in order to build a hotel. This is intended as (pick one…oh, heck, pick as many as you want) revenge, ironic justice, condign punishment or bitter medicine for Souter’s contribution to the majority opinion in the Court’s recent ruling in the case Kelo v. New London, in which a private homeowner challenged the city’s attempt to take private property by eminent domain in order to give it to private developers. Clements’ is also an inappropriate response, simultaneously petty, personal, mean-spirited and spiteful. Which is to say, unethical.

The case was a tough one, placing the Supreme Court in the unpleasant position of either cutting back dramatically on the urban planning tool of eminent domain (a device approved in the Constitution, where by a local government can require a forced sale of private property at a fair price for a “public use”) or broadening it to include as “public use” the fact that municipalities get more financial benefits from businesses than private residences and from big businesses than small ones. Rather than pre-empt Congress by settling the issue, the Court’s 5-4 majority barely allowed New London’s land grab while strongly hinting that it was up to Congress and state legislatures to chart limitations on the use of eminent domain in the future. In terms of long-term policy and judicial restraint, as well as deference to precedent, the decision is a valid one. The legislative re-examination the Court felt was over-due on this issue was indeed sparked by the decision. It is also undeniable that the ruling will result in undeserved hardship for the many private homeowners who will soon be displaced by it.

Nonetheless, Souter and the rest of the majority were doing their jobs and interpreting the law, and it is both wrong and willfully ignorant to attribute any bad motives to their decision. Clements, however, is determined to apply a variation of the Reverse Golden Rule: do unto others as they did unto someone you sympathize with. He is trying to persuade New Hampshire to seize Souter’s family property in the tiny rural area of East Weare, about 15 miles from the state capitol, to build a luxury hotel. You’ve always wanted to vacation in East Weare, right? I know it’s been a dream of mine.

“We would act just as these cities have been acting in seizing properties. We would give Souter the same sort of deal that the cities have been giving them,” Clement has said. Now what is this? Clements would say, I suppose, that Souter should “know what it feels like” to lose one’s land by government edict. Does he really believe that a judge, not just a judge but a Supreme Court judge, has so little basic human understanding and experience that he has to be shown that losing one’s property is a calamity? Do we have to execute a judge’s family members or send them to prison before he or she can understand what it means to sentence a criminal? Should a child be taken away from every family law judge? Judges have tough jobs, and Supreme Court judges have the toughest of all: by definition, the cases they examine have good arguments and high stakes on both sides. If Clements really believes that Supreme Court judges don’t realize that their decisions often cause pain, he’s seriously deluded.

If that’s not the rationale behind his project, what’s left? Revenge, that’s all. Punishment, and perhaps even intimidation. He wants to send the message to judges that what their rulings permit will be done to them. Not “might be done”…Souter obviously knows that his property is theoretically as much at risk of being taken under eminent domain as anyone else’s (except for the obvious fact that East Weare is not a good site for luxury hotel), just as the Supreme Court members who have upheld capital punishment know that if they go on a killing spree (now that would be a real breach of judicial ethics) their ruling would put them at risk of getting the chair. No, Clement’s message to the judiciary is that they WILL be subjected to the consequences of their decisions. That’s a threat. And that’s wrong.

There are ethical ways for Clement and other citizens to express their justifiable displeasure with the Kelo decision. An obvious one is writing to their elected representatives. Attacking the messenger when your problem is with the message is not merely unethical, it is ineffective.

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