The courts spoke and many people are unhappy

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Within the space of a couple of weeks, the U.S. Supreme Court and the California Supreme Court came down with major decisions, which made some people happy, some unhappy and a significant number of whom haven’t yet decided if they’re happy or unhappy about the recent decisions.

It’s been my observation that most people consider the Supreme Court of the United States to be thoughtful and reasonable when the court renders a decision they agree with. On the other hand, when the decision goes the other way, well, then they’re just a bunch of unelected old people, judicial activists with life tenure and out of step with the times, who take pleasure in thwarting the will of the people.

One decision recently had the property rights crowd screaming long and hard; a decision that expanded the right of condemnation by governmental entities. It now allows a government, typically a municipality, to condemn land on behalf of a private developer to make way for a private development project. In the old days they could only condemn for a government-type project, like a road, a sewer plant or a park. This decision expanded that condemnation power significantly.

Despite all the noise, it probably was, at least to my mind, a reasonable decision. Our perspective in the West is really different on this case than in New England, the East Coast and many places in the Midwest. Many of those places have towns that were the industrial and manufacturing cores of America, which are now old and slowly dying. The manufacturing jobs have gone to China and Sri Lanka. The main streets are boarded up, the young people leaving for the big cities in search of opportunity and the towns shriveling. To try and fix their towns, maybe find a different kind of industry, takes rehabbing. And that takes capital. City governments need big bucks to rehab their towns and they can’t pass bonds because no one has the dollars; voters are pessimistic and depressed and won’t vote for anything. The only kind of capital available is private capital, big developer dollars or investment banking money. You can only get that if you bring in the entire package. You can’t do that if a few people have the ability to block it all by just saying no, which I think is why the court went the way it did. But to make it fair, there has to be built into the system protection for the individual being condemned and that protection should include some piece of sweetener from the new project. Without it, the big money will just corrupt the government and roll over people. I think the federal Supreme Court was being proactive, looking ahead, but not unaware of the risks. If it turns out in time that abuses are showing up in the court cases, it can always change course and back off a bit, or create some criteria if the legislative bodies don’t act. Is that judicial activism or just realism? I guess it depends on how you feel about the decision.

On the other hand, the California Supreme Court just had an enormous opportunity in the Marine Forest Society v. California Coastal Commission case to lay down some guidelines. What they essentially did was show that in matters involving significant public policy questions, they simply don’t have the stomach to take on the Legislature, and in the process relegated themselves to a backbench status. The case questioning the constitutionality of the California Coastal Commission was a much bigger case than what met the eye. Because in the last 20 years politics has changed radically in California, and more and more the entire system of checks and balances has fallen apart. The theory is that the three branches of government-the legislative, the executive and the judiciary-are independent of each other and serve as a check and balance on each other. The problem is that there are not three branches of government. There are really four and the largest, strongest and least accountable is the bureaucratic branch of government. Its members are not elected; they are virtually appointed for life, and the boards and commissions they serve are actual boards and commissions that they command. The power of the bureaucracy extends into the Legislature and in many instances the Legislature really doesn’t challenge the bureaucracy. There are reasons for this.

First and foremost are term limits. Legislators cycle through the system so quickly that many never have an opportunity to acquire any great expertise. Forty years ago, when I worked for a state senator, there were senators up there who had been there for 20 years. The senators personally had enormous expertise and you just couldn’t come in and feed them baloney. Today, it’s a great deal easier because the bureaucratic leaders have been there for 20 years and most senators for four. You simply can’t learn anything as complicated as California government in four years, so the senators are dependent on the bureaucracy for information, and information controls the decisions.

Secondly, all the seats in the Senate and the Assembly are safe seats. No one lost their seat in the last round of elections. Barring some sexual scandal, which you can get around just by saying you’re sorry, no legislator is going to lose his or her job because their constituents are unhappy. So what happens is they ignore their constituents and belong instead to some group-the agriculture group, the chamber of commerce group, the environmental community. Those groups get the senators’ first loyalty and frequently their only loyalty. If you go up to Sacramento as a voter they’ll shake your hand and make nice, but the truth is, you the voter are not their business anymore because you really can’t hurt them. Now the court knows all this and had an opportunity to weigh in, but they simply didn’t have the nerve. I suspect there were so many conflicting views on Marine Forest that it was simply easier to punt, which is precisely what they did, but I doubt anyone is going to write them up in the next edition of Profiles in Courage. From the Publisher

Arnold G. York