Court Building

(Patrick Wright recently joined the Mackinac Center for Public Policy as a senior legal analyst, and his primary activity will be penning amicus briefs in state and federal court cases that involve important implications for the rule of law, limited government and individual rights. The following is an edited transcript of an interview with Wright discussing recent news from the U.S. Supreme Court and the Michigan Supreme Court.)

MCPP: A lot has been happening on your beat due to the end of this year’s Supreme Court session. Let’s start with the ruling in Kelo v. New London, in which the court narrowly upheld the government’s right to use the power of eminent domain to transfer private property — in this case, a person’s home — to a private corporation that would provide the government with more tax revenue. You’ve already commented a couple of times on the ruling, and the Center filed an amicus brief in favor of the homeowners, so let’s shift the emphasis a little.

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Groups like the Institute for Justice and Landmark Legal Foundation look for cases that have sympathetic clients and where the main legal issues are as clear as possible. The goal is a definitive — and hopefully favorable — ruling on the principle involved in the case. But isn’t there a risk in bringing big cases like this? If you lose, you lose big, and the state of the law may be more settled against you than it was beforehand.

Wright: Well, first of all, legally speaking, things aren’t that much different after Kelo than they were before. If the government wanted to take your property before Kelo, they were free to under federal law.[1] It might not have been as clear that they could do it, but they could basically do it.

Now, after Kelo, it’s evident that they can do it, and they’re less likely to face objections. That’s too bad, but it’s not that different legally.

There is a silver lining to losing big. Losing big highlights the issue; it makes the stakes clear; and it lets you educate people, which is one of our objectives.

Obviously, the optimal thing in Kelo would be that we win. The public doesn’t have to get agitated, and we don’t have to go through the process of educating and setting things right.

MCPP: Were there any decisions that came out of the Supreme Court’s recent session that were, in your view, particularly good in the sense of the court's having read the law well and upheld personal freedoms?

Wright: Not in this particular term. … The court has slowly begun — Chief Justice Rehnquist has been somewhat of a champion of this — to try to rein in the federal government’s power under the "commerce clause."[2] As a consequence of the 1930s, when the court upheld New Deal legislation, the ability to enact laws under the commerce power of the United States government has been greatly expanded. The case that was most often cited for this is Wickard v. Filburn. What that ruling said is that an individual who was growing wheat on his own farm and consuming it at home was thereby not buying wheat from his local market, which might have been shipped from somewhere out of state, so this therefore affected interstate commerce. And if you read the commerce power that broadly, it gives the federal government an almost unlimited ability to regulate.

That power is different from what the Framers intended. The Framers intended that the federal government be limited to the enumerated powers of the Constitution, of which the commerce power was one, but one that actually had some limits to it. Chief Justice Rehnquist, and to a certain extent Justice O’Connor, have slowly started to create a new model in which there will be some limits on the commerce clause power. …

In a political framework, it is easier for people to correct whatever flaws they believe they see in their representatives’ actions when government is closer to the people. At the federal level it is very difficult to undo some of the decisions that are made. You have to align the House and 60-plus votes in the Senate, given the Senate’s filibuster rules, and usually the president. So it’s very difficult to … get enough attention nationally to get a change.

That’s one of the reasons why we like government to make decisions as close to the people as it can, so that if people want to change those decisions, they can. The expanded federal commerce power allows the federal government to make almost any decision it wants. Politicians who are currently in the federal government usually want that power increased as much as possible.

So there is some sign of a new trend. It started in 1995 in a case called United States v. Lopez, which concerned the Gun Free School Zones Act, and it has been rolling on over the past decade.

MCPP: Aside from Hathcock, which overturned the Poletown decision, did you see any rulings from the Michigan Supreme Court in the past year that upheld individual rights and the rule of law?

Wright: The Michigan Supreme Court is a model of how the federal courts should act. This court is serious about leaving legislative choices to the people and getting out of the public policy arena. This court adheres to the text, and the justices presume that the Legislature knows what it’s doing. If the statute is written a particular way, and it isn’t the way people want it, the responsibility for changing it or tweaking it lies with the Legislature, not the courts.

So there is not a particular case, but a philosophy. … Where the government or any party violates the law as written, the court is going to do its duty, which is to enforce the people’s choice. Under the Michigan Constitution, what was being done in Hathcock was inappropriate, and the court was willing to perform its role. It wasn’t going to create something or intentionally misconstrue a statute so that it could reach the result it wanted to.

MCPP: Let’s turn back to the national stage. The resignation of Justice Sandra Day O’Connor means a new justice will be appointed to the Supreme Court, and it appears possible that Chief Justice Rehnquist may resign soon.

Wright: If there are two nominations, it’s going to increase the likelihood that (President) Bush is going to try to mollify both sides — and by both "sides," I mean that supposedly there are two camps. There’s a school of thought in the Republican Party that it could increase its popularity with Hispanic voters by appointing a Hispanic justice. The front-runner for such an appointment is U.S. Attorney General (Alberto) Gonzales, whom many social conservatives have qualms about.

These conservatives make up the other side. There is a history of presidents appointing justices whose views are not well-known and later regretting it. Eisenhower said that his two biggest mistakes were serving on the Supreme Court, and those were Chief Justice Earl Warren and Justice Bill Brennan. They were appointed by Republicans and were two of the liberal lions of the court. Both did a lot to politicize the court. They did at least some good, making some correct decisions, but they also increased the power of the court to where it made political decisions rather than legal decisions. Justice Blackmun, appointed by Nixon, wrote Roe v. Wade, one of the more controversial decisions; Justice Stevens, appointed by Ford, is currently considered to be in the moderate-liberal wing consistently; and there is Justice Souter, another person appointed by a Republican.

The sole Democratic appointment in the past 30 or 40 years where Democrats had a little concern about the way the justice matured is Byron White, who wrote the Bowers v. Hardwick decision,[3] which was, in essence, overturned last year. And to a certain extent, Hugo Black, who was for a long time part of the more liberal wing, was unwilling to go along with some of the stuff that William O. Douglas and Warren and Brennan recommended.

So there have been some disappointments on both sides, but the point is that the conservatives — and the social conservatives more so — are looking for a proven track record. They don’t want any more disappointments. … So rather than someone like Gonzales, with a brief legal record they are not entirely sure of, they would like to have somebody with five to 10 years of appellate court views. They want to be able to say, "I’ve read enough about this guy, and I know and trust that he or she’s not going to change after joining the Supreme Court."

What opening up two slots does is it may allow Bush to try to address both issues, satisfying the political concerns with Gonzales and meeting the social conservatives’ concerns with a clearly conservative justice. What that means is that we’re really back in the status quo. We would have a true conservative replacing Rehnquist — that’s tit for tat, and there’s no real change. It then becomes a question, What does it mean to appoint Gonzales for O’Connor? Now if you appoint two conservatives — two people with track records — then you’re more certain there is going to be a movement on the Supreme Court.

MCPP: The president believes he might have a candidate appointed by Oct. 1. How long do things usually take? How realistic is Oct. 1?

Wright: It usually takes, I think, about 110 to 130 days. Normally, if a nominee is going to be in trouble by then, they know it. A couple of names come to mind: Judge Ginsburg of the D.C. Circuit Court, who had a marijuana problem and withdrew his name. Bruce Babbitt’s name was discussed in 1993 by Clinton for the Supreme Court. Clinton eventually nominated Breyer and Ruth Bader Ginsburg. So it can be a long and difficult process.

MCPP: So this particular appointment — or maybe two appointments, if Rehnquist resigns soon — could take us past Oct. 1.

Wright: The interest groups have an incentive to almost create as much conflict as possible, because this is when they’re going to do all their fundraising. The more dust they can kick up, the better their long-term prospects for fundraising.

But this is also a big deal for the institution of the Supreme Court. Just dealing with the primary question, these appointments are going determine the role of the court in this country for the next 10 to 15 years, absent unexpected retirements. The people who are on the conservative side are generally younger — Scalia (69) and Thomas (57). Rehnquist is going to retire potentially, and if he does, and if he is replaced by a conservative, you have three conservatives. Kennedy (68) effectively becomes the swing vote, along with whoever is going to replace O’Connor.

On the other side, Ruth Bader Ginsburg is a bit older (72) and is rumored to have had health problems. Breyer is fairly young (66), and I believe Souter (65) is also fairly young. So if either justice — Ruth Bader Ginsburg or Stevens (85) — retires, that’s just going to make it easier for the president to impact the court.

But the point is that there isn’t really anybody besides Rehnquist who is likely to retire soon and who could change the balance of the court. Therefore, it’s O’Connor’s replacement that’s going to determine whether the court continues on with its very active interventions in social questions in this country, or whether it’s going to be more deferential to legislative and policy choices of elected representatives.

And for that reason, I don’t think there’s a bottom to what we’ll see. Particularly if Bush puts a somewhat conservative justice up, "Bork" and "Clarence Thomas" are going to be the mantra, and that is going to be at minimum the level of acrimony that we are going to see. And perhaps it is going to be even worse.

MCPP: Does this kind of conflict risk damaging the body politic?

Wright: That’s a great question. It points out what the stakes are here. … If you ask the folks who are for a more activist court, they see the courts as the last bastions for protecting what they perceive as freedoms. If you ask the people who are typically called conservatives, they’re saying the court is interfering with democracy and the public’s will, and it’s ignoring language and making its own policy choices.

This is an extremely important constitutional debate. As the courts have assumed more and more power — or at least are perceived as more and more political — it has done damage to the institution. Those who believe the courts should only interpret the law and not make public policy would argue that the best way to prevent that damage is to not have the courts wade into these issues unless there is clear constitutional text. In that sense, the court acts legitimately when it acts on text or laws that are clearly set forth, and it causes damage when it doesn’t.

While there will certainly be a lot of hue and cry over an attempt to rectify the problem, it’s probably necessary, because it’s far more damaging to the country to have the court acting in an improper manner than it is to have a couple of nasty confirmation hearings.


Patrick J. Wright is senior legal analyst at the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.

[1] The Michigan Supreme Court’s ruling last year in Wayne County v. Hathcock prohibits takings in Michigan like the one permitted under the U.S. Supreme Court’s decision in Kelo.

[2] Article I, Section 8 of the Constitution gives Congress the power to "regulate Commerce … among the several states. …"

[3] Bowers v. Hardwick upheld a Georgia sodomy statute.