Why Doesn’t the Judge Give that Defendant Frequent Flyer Miles?

We depart once again from our usual topics of eminent domain and land use, to share this gem with our readers. Today’s LA Times reports that a Mexican gentleman has been arrested and evidently sentenced to five years in prison. The Times article discloses that the miscreant in question had been caught escorting illegal aliens into the US 23 times in the last 17 years. No, we are not making this up; it’s sitting right here in front of your faithful servant in living black and white. See Teri Figueroa, Migrant Smuggler Gets Prison Term, L.A. Times, March 29, 2016, at p. B3. Evidently each time he was deported he turned around and came back, with a clutch of illegal aliens whom he guided through the border. Last time, says the Times, his charges complained that he robbed them before bringing them to the Promised Land

According to our calculator, that comes to one round trip 1.35 times a year. It would be appropriate, it seems to us, if at the end of each such deportation court proceeding the defendant were to say to the Judge “Thank you your Honor. See you next year.”

We tried to be funny, but it isn’t working. This is way beyond self-parody and goes a long way toward explaining why America is in trouble, and why Donald Trump’s calls for draconian border controls are finding resonance with so many people, and why he has done as well as he has in the polls.

California Choo-Choo (Cont’d.)

We offer this quote without comment, from today’s Los Angeles Times:

“[T]he agency could not identify the source of money to complete the entire Los Angeles-to-San Francisco system. That leaves a $43.5-billion gap in the business plan, scheduled for approval later this month.” Ralph Vartabedian, Senators Share Their Doubts About Bullet Train Financing With Rail Officials, L.A. Times, April 5, 2016.

For the entire LA Times article, go to http://www.latimes.com/local/politics/la-me-train-funding-doubts-20160405-story.html

Good Read — A New Law Review Article on the “Ripeness Mess”

Don’t miss a new article by R.S. Radford and Jennifer Fry Thomas, The Accidental Abstention Doctrine, 67 Baylor L. Rev. 567 (2015). If you are a “ripeness mess” maven, the title says it all.

While the authors are being polite as is customary for law review writers,* their point is that the Supremes had no idea what they were doing when they concocted the ripeness doctrine out of the whole cloth, without it ever being raised or briefed by the parties in the Agins case which was presented to the court as a question whether the remedy in regulatory taking cases is “just compensation” like it says in the Fifth Amendment, or merely judicial invalidation of the challenged property regulation as argued by the city of Tiburon. At the time, that issue divided the courts all over the country, but instead of dealing with it honestly, SCOTUS just ducked it. It also bollixed up pertinent Tennessee law on which it relied. But that’s another story.

Moreover, the Agins holding by SCOTUS was contrary to Euclid v. Ambler Realty which held explicitly that no application for a land-use permit need be made before suing in federal court to challenge the validity of zoning. So how did the court solve that little problem? It simply ignored Euclid. And so it goes.

The issue decided by the court came out of the blue, evidently based entirely on a stray — and doctrinally wrong — sentence in the amicus brief of the Solicitor General who knew not whereof he spoke, and relied on a due process, not a taking case, as the U.S. Supreme Court later confessed in the Lingle case.

Do read the Radford-Thomas article. You will be better informed.**


*      This is an old problem; law review writers want to be polite so they produce incomprehensible verbiage that dances around judicial errors without making clear just how and how badly the court screwed things up. See, Fred Rodell, Goodbye to Law Reviews — Revisited, 48 Va. L. Rev. 279, 280 (1962).

** Full disclosure: Your faithful servant, aided by his student assistant, the late Agnes Mulhearn, did the briefing in the U.S. Supreme Court. He argued the case on behalf of the land owners, Dr. and Mrs. Agins.

A Trip Down Memory Lane

Be on the lookout for the next issue of the Urban Lawyer (Fall 2015) that will carry your faithful servant’s semi-autobiographical article, dealing with his professional activities as an eminent domain lawyer during the past half century. The citation is Gideon Kanner, The Way We Were: California Eminent Domain Then and Now, 47 Urban Lawyer 717 (Fall 2015). We hope you will find it entertaining and possibly informative.





A Bit of California Eminent Domain History

Don’t miss an op-ed in today’s LA Times, David K. Randall, Los Angeles Times, March 13, 2016, at p. A27, entitled Is It Possible to Save Paradise? Though badly slanted in favor of the environmentalist point of view — of the what’s-yours-is-ours variety — it does tell the story of May Rindge, the tough-minded 19th century lady who owned Rancho Malibu, stretching along the Pacific coast from Santa Monica to the Ventura county line. Her land was coveted by others, “homesteaders,” as the Times puts it; actually, armed trespassers who sought to invade her land, and whom she repelled using her armed guards.

Eventually, the County of LA sought to put a road through her land and condemned a right of way for it. Ms. Rindge resisted the taking in court on two grounds: lack of public use and lack of statutorily required public necessity. The first defense was based on the argument that since the road came to an abrupt end at the Ventura County line, it was a proverbial road to nowhere and thus not a public use since it couldn’t be used by the public to get anywhere. It didn’t fly. It was enough, held SCOTUS, that the public could drive on that road back and forth and enjoy the view.

AS for public necessity, argued Ms. Rindge, that feature of that road to nowhere rendered it unnecessary and thus violative of the public necessity statute. But she didn’t get to make that argument on the merits because the California public necessity statute also provided that if the resolution was passed by a specified supermajority (as this one was), it was conclusive. The court rejected Ms. Rindge’s argument by upholding California’s right to adopt such a statute without thereby violating Due Process.

Of course, this is a Los Angeles Times story, so you cannot rely on its accuracy on this subject. The LA Times story says that the U.S. Supreme Court ruled  that the public “had the right to access beautiful places.” Of course, the Court said no such thing. It held that the county had the right to acquire a right of way for what is now known as the Pacific Coast Highway, using the power of  eminent domain. Which is to say, if “the public” wanted to enjoy the ride, it would have to pay just compensation for the taking of the right of way.

If you don’t believe us, here are the issues presented to and decided by the US Supreme Court (Rindge Co. v. County of Los Angeles, 262 U.S. 700 (1923):

“The two fundamental questions involved are whether the uses for which these lands have been taken are public uses authorized by law; and whether the taking was necessary to such uses.”

Nothing about “beautiful places” — the right to take would have been the same if the subject property had been butt-ugly.

Anyway, it’s a great story from the old West and we can see a movie made of it, with Barbra Stanwyck playing May Rindge.

Today, Malibu is a playground of the seriously rich whose pursuit is to keep everybody else out. They personify that grand old poem that goes:

“We thank thee, Lord, for thy good grace, in bringing us to this beautiful place. And now, Dear Lord, show us the way to keep all others far away.”

Our Latest Column — the Trump Candidacy

Los Angeles Daily Journal

March 7, 2016

Along Comes Donald the Conqueror

By Gideon Kanner

Much has been said lately about Donald Trump’s presidential campaign that is rolling on in spite of his aggressively crude, in-your-face political rhetoric. But from his point of view, he is only seizing an opportunity handed to him on a silver platter. You could say that after seething with anger at the excesses of the political establishment for years, and after being repeatedly lied to by politicians (e.g., “read my lips” and “you can keep your doctor”), the people are angered to a point where they no longer listen to the familiar political babble. America is still the place to live, but trouble is brewing.

What is troubling the American people? Let us count the ways:

First, let’s start with money. America is spending itself into insolvency, and the government seems to think that destruction of people’s savings, which undermines the middle class, is a good thing. People are unable to save for their old age, while Social Security bids fair to run out of money before long. At the same time, big banks get interest free money from the Federal Reserve and charge double-digit interest rates on consumer credit card debt. As this goes on, Joe Sixpack is lucky to get 0.02 percent on his bank savings account on which he has to pay taxes at a rate that may be higher than his employer’s. Good ol’ Joe may be a patient man, but do you think he will stand still for that sort of thing indefinitely, or will he turn into an angry Archie Bunker somewhere along the way?

Second, in spite of rosy government statistics, American businesses are still laying off employees in order to replace them with cheaper foreign workers, or moving entire enterprises to other countries, thereby contributing to a gigantic and growing trade deficit. Trump has a point when he rails against the spectacle of foreign folks eating our lunch with impunity. Trade may be good, he says, but cheating at it is not.

Third, our Supreme Court justices, openly chosen for their partisan ideology, at times preempt the democratic process and impose outlandish notions (“emanational penumbras” anyone?) on a free country without any explicit constitutional basis, and without affording its people an opportunity to debate them to reach a consensus on whether they should be accepted as “the law of the land.”

Fourth, we confront an odd situation where, for some reason, even as socialism has been consistently a catastrophic failure all over the world, a significant part of the American population insists that we should embrace it. And so, an avowed septuagenarian Socialist from Brooklyn is piling up votes and has become a contender in a presidential election. Why? Because many people are so pissed off at traditional politicians that they would rather vote for him than for any traditional politicians who just aren’t trusted.

Fifth, American educational institutions have declined to a point where they produce people who think that Winston Churchill was a Civil War general, and even at the college level believe that waving placards and loud repetition of fashionable slogans is tantamount to analysis. Thus, at the elite Yale University you can get into trouble if you want to wear a sombrero to a student party. For this, people have to pay tens of thousands of dollars per year and go into serious debt for life?

Sixth, how could we possibly drift into embracing a foreign policy that fails to differentiate between our friends and our enemies, wastes lives and resources on increasingly pointless wars that make things worse, and pretends that ungovernable tribal savages in remote corners of the world, who have been killing each other for centuries (with particular attention devoted lately to persecuting Christians), can be transformed into civil societies by an abrupt “regime change” brought to them at gun point by the U.S. Marines? “Shores of Tripoli” this isn’t, and even if there are some surprising similarities, at least we didn’t then try to convert the Barbary Pirates to American values; we just kicked ass, persevered and eventually got our hostages back.

Seventh, American press and broadcast media have become a cheering section, if not a propaganda arm, of the Democratic party, that often resorts to reader deception through omission and commission interwoven with the news. Understandably, they are in a state of decline.

Eighth, we have (a) abandoned the idea of sovereignty and cultural cohesion by disregarding our immigration laws and for base economic and political reasons encouraging a mass migratory invasion across our southern border by millions of foreigners, with whom we are increasingly unable to deal, (b) we are facilitating an inflow of people whose status as potential “sleeper” terrorists is de facto unascertainable, as the folks in San Bernardino learned the hard way, and (c) adding insult to injury, our government insists that people who use or support violence to suppress cultural, religious and ethnic minorities on their own turf, are practitioners of a “religion of peace” whose compatibility with American values we must not question, even as corpses are piling up.

Ninth, our tax laws have grown so complex and convoluted that no one – not even the IRS – can understand and interpret them consistently, with the popular perception of them being that they can be manipulated by clever practitioners to their clients’ unfair advantage, while good ol’ Joe Sixpack has to pay his taxes full-pop, sometimes at a rate higher than his employer.

And last but not least, how could the explicit constitutional mandate limiting takings of private property to “public use” been transmogrified into a process that routinely takes property from some private persons, often occupied by members of the working or middle classes, and in a display of reverse Robin Hoodery transfers it to more favored and certainly wealthier individuals, for the latter’s private gain? The Kelo case has had an astonishing and unanticipated impact on Americans’ understanding of how their government really operates – none of it for the good.

In the meantime, Congress is dysfunctional (how many speakers of the House have we had lately?), and operates as if its first duty were to compromise principle and common sense, and to transfer as much money as possible from the Treasury to the Congressfolks’ respective states and districts. (Remember the $390 million appropriation for a Golden Gate sized “bridge to nowhere” on the godforsaken, sparsely populated Gravina Island in Alaska?). But to accomplish that, the money first has to be transferred from the citizens’ pockets to the Treasury. So is it any wonder that sophisticated corporations that are able to do so, leave this country for foreign tax havens by using “inversion” or just moving their money around.

Now along comes Donald Trump, takes it all in and concludes that the rising popular anger has reached a level where it can serve as accumulated political dynamite that he can set off, and use the released energy to propel himself into the White House. So as far as he is concerned, what’s not to like? And if the country’s political system, dysfunctional to begin with, is further damaged in the process, hey man, that’s how the political cookie crumbles. The democratic form of government may be great stuff, but to be effective and successful, it requires a measure of judgment and the consent of the governed. So when the ruling class and its media friends flim-flam the people for a long enough time, and impose major policy changes on them without their consent, you shouldn’t be surprised when a “man on a white horse” rides out of nowhere and takes charge to the cheers of the multitudes. Just be glad that this time, it’s only Donald Trump. Given the past track record of the Washington establishment, and the pent up popular anger, it could have been worse.

Gideon Kanner is professor of law emeritus at the Loyola Law School.

This article was edited 3/7/16

California, There I Go

Though not often reported by the LA Times, we know that housing costs in California have been driving people out in large numbers, Now, Curbed LA has printed a detailed report on the exodus. Given its economic roots it comes as no surprise to us that it is people with lower incomes who are leaving in droves because they simply cannot afford to live here. Bianca Barragan, High Housing Costs Are Driving Californians Out in Droves, Curbed LA, March 4, 2016.  Click on http://la.curbed.com/2016/3/4/11161626/california-housing-costs-migration. Here is a summary:

“Angelenos and San Franciscans know their housing is insanely expensive, but California on the whole has some of the most expensive housing in the US, and that’s driving many poor and middle-class Californians out, says a new report from Beacon Economics and released by Next 10, a nonprofit group founded by Bay Area venture capitalist F. Noel Perry (via the San Gabriel Valley Tribune). In the years between 2007 and 2014, “625,000 more people moved out of California to other states than moved into California from other states.”

“Beacon says that a closer look at who is leaving California—their income, education, jobs—suggests that expensive housing costs are a far more likely explanation for out-migration than, say, the commonly complained-about taxes, which would be more likely to drive out the rich. Housing costs have been blamed for pushing lower-income people out of the state before, and a companion report from Beacon shows how unrealistically expensive the market has come in California; it now has a severe housing shortage and the second lowest homeownership rates in the country.”

Who are these migrants? “[T]he majority of out migration can be attributed to residents who earn less than $30,000,” Beacon says, and a huge chunk of those people leaving—192,700 over the seven-year period—are in “lower-skilled, lower-paying” fields, meaning something like food preparation, transportation, or office administration—jobs that are pretty essential to any state.



Eminent Domain: “Dark Corner of the Law” No More

Back in 1953, Lewis Orgel, author of the well regarded, two-volume treatise Valuation Under Eminent Domain, called eminent domain “the dark corner of the law.” And so it was. Outside of government, there were few eminent domain lawyers representing property owners, and not much interest in the subject. Even later, in the 1960s, when the number of eminent domain cases soared as the government took lots of property for highways and urban redevelopment, condemnation lawyers were pretty much a small fraternity, usually practicing solo or in small offices in large urban areas. But then things started to change. First came the tidal wave of takings for the Interstate Highway network , and for urban redevelopment. Then came controversies over inverse condemnation — especially of the regulatory takings variety. Takings law became a widely debated, controversial topic.

Then, in 2005 came the Kelo case, and all hell broke loose on the subject of the right to take, as the lay  American public began to understand that in the hands of judges, the Fifth Amendment phrase “public use,” limiting takings, didn’t mean “public use” and provided no protection against takings for manifestly private uses like malls and privately owned car factories. Rather, said Justice John Paul Stevens in his infamous 5 to 4 Supreme Court Kelo decision, “public use” meant “public purpose” which can mean anything the condemnor prognosticates, whether it happens or not.

If you are reading this post, you probably know what happened next. People came to realize that their homes were now fair game. They could now be taken from them in order to increase the local municipality’s cash flow and presumably, by a trickle down process benefit the private business community. But it didn’t happen. After destroying an unoffending lower middle-class community in New London, Connecticut, the prognosticated Kelo project was never built, and the local and state governments blew over $100 million for nothing — now, over 10 years after the Supreme Court decision, the subject land  is still sitting empty and unproductive.

But one consequence of the Kelo case has been the raised public consciousness of the eminent domain process and its abuses. Pipeline companies, for example, have discovered that these days they have small civil wars on their hands when they try to lay pipelines across farm land.

The latest is the emerging debate over eminent domain in the current presidential campaign. Donald Trump thinks that eminent is wonderful, while others disagree and are infuriated by that statement. In short, eminent domain has become a big-time issue in the presidential campaign. Now, we get word from  Florida, that the Conservative Solutions PAC is distributing large, 8 1/2 by 11 color flyers printed on heavy card stock, charging Trump with being wrong on his eminent domain position. (A tip of our hat to Prof. Frank Schnidman of Florida Atlantic University for this information). Will it make a difference? We have no idea. But the fact that eminent domain is being debated in this fashion on this lofty level demonstrates that we have come a long way from the days when folks were in doubt as to how to spell  “eminent.”

We are not sure whether the emergence of this topic as presidential campaign fodder is a good or bad thing. But as they say in Hollywood, “Say what you want about me, as long as you spell my name correctly.” So in case any of you folks are in doubt, it’s “eminent,” not “imminent.” Although, come to think about it, there are cases where eminent domain is imminent, and if delayed long enough, it can lead to litigation in which owners demand (and sometimes get) compensation for the unreasonable dealy. See Gideon Kanner, Condemnation Blight: Just How Just Is Just Compensation,  48 Notre Dame L. Rev.765 (1973). It’s a good read, folks even if it, like good wine, has done some aging. But it received a national prize from the Appraisal Institute (then the AIREA), so it can’t be all bad.

California Choo-Choo (cont’d.)

The California High Speed Rail Authority has come up with a whole new plan for the LA to San Francisco “bullet train.” The new plan “acknowledges the complications involved in crossing the [Southern California] mountains,” moves that part of the job to its end, and — surprise, surprise! — the plan “is unclear on how the segment from the Central Valley to Los Angeles will be paid for.” See Ralph Vartabedian, Slow Going for Bullet Train, L.A. Times, March 4, 2016, at p. B1.


Give Credit to Judge Kozinski, the Prophet

As we feared, following Justice Scalia’s untimely death, we found ourselves knee-deep in hypocritical bullshit going on about the asserted impropriety of the Republican Senate contemplating the blocking of the appointment of a replacement for Justice Scalia by a lame-duck, controversial President in an election year. As if that never happened before. The same politicians who in the past insisted that an outgoing president in his final (election) year should not appoint Supreme Court Justices, are now insisting that, au contraire, doing so is the President’s sacred duty under the Constitution which  says no such thing.

But all this should not come as a surprise to thinking people with a minimal knowledge of recent history. If you don’t think so, join me in a little history lesson in which we examine how it all came about.

It was President Franklin Delano Roosevelt who planted the seed from which today’s judicial appointment mess grew — no rational debate about that. After the Supreme Court of the 1930s rejected several New Deal measures as unconstitutional, Roosevelt got tough and announced that if the Justices did not buckle under to his administration’s demands he would get legislation passed by a compliant Congress, allowing him to appoint a half-dozen additional Justices — his kind of Justices — thus packing the court with people who would now find New Deal legislation acceptable. And in something less than a judicial profile in courage, the court’s members buckled under and in the infamous “switch in time that saved nine,” began approving New Deal legislation. And there went the status of the judiciary as an independent, co-equal branch of government participating actively in the checks and balances system. In time, it also gave  rise to a whole new legislative attitude, whereby constitutional objections to new legislation, made during legislative deliberations, are brushed aside as matters that should be decided by the courts. The courts obliged and took on the legislators’ job. And there went the authority of the legislature as an independent co-equal branch of government, because legislators could now legitimately pass the buck to judges and let them make tough decisions without having to face the voters.

For a great example, see the Oakland Raiders case. There the mighty, activist California Supreme Court pronounced itself unable to review on constitutional grounds a city’s decision to seize the NFL franchise of the Oakland Raiders, in order to turn it over to others who would comply with the city’s demand that they give up their constitutional right to travel, and refrain from moving to another venue. Asked the mighty, activist California Supreme Court in its original opinion: “Who are we to . . .” tell the city what the constitutional term “public use” means?

There are other examples in the law of eminent domain. There is a rule in it holding that when the legislature (or a non-legislative, unelected body to which the power of eminent domain has been delegated) decides that a proposed taking is for a “public use,” that event renders the decision “well nigh conclusive,” and not subject to meaningful judicial review. Neither is the statutorily required public necessity for the taking (no necessity whatever need be shown in federal law– Bragg v. Weaver). In California, statutorily required findings of necessity are reviewable but only in cases of bribery or “gross abuse of discretion.” Until 1976, it was not even subject to that sub-minimal level of review — it was OK with our courts if the resolution was procured by fraud, bad faith and abuse of discretion. (People v. Chevalier).

Condemning agencies, on the other hand, take the not-unreasonable position that since “public use” is a constitutional term, it, along with other constitutional matters, is properly  something to be finally decided by the courts. Thus, the pertinent law reduced itself to a farcical game in which the legislature and the courts defer to each other, like the characters in the old “Alfonse and Gaston” comic strip, while serious constitutional issues go unanalyzed.

Then, on the broader constitutional field, along came the Warren Court whose supporters informed us with a straight face that, alas, the legislative branch of government had screwed up when it failed to keep the law in tune with modern reality as seen by them, so there was nothing for the judiciary to do, but to ignore the separation-of-powers doctrine and take up law-making big time, in order to give the legislators a helping hand, sometimes whether they wanted it or not. Nobody, as we recall, argued that by the same token the legislature should be able to try cases to lend a hand with litigation, in cases of judicial failures.

You know the rest. By degrees, to a large extent, courts became law-making institutions, constitutionalizing policies that judges found agreeable and hiding behind precedents of their own making when they did not feel like it. Thus, in our field — land-use — judges developed something that well-known land-use treatise author, Norman Williams aptly termed “gastronomic jurisprudence” — whatever feels right in a judge’s gut. And so, federal judges decide all sorts of constitutional issues arising from local land-use enactments, but when it comes to regulatory taking cases many of them disclaim any intention of becoming “zoning muftis” in doing so.

And if you think I exaggerate, read the passage in Penn Central Transp. Co. v. City of New York, where the U.S. Supreme Court confessed in haec verba that it was “simply unable” to formulate any reliable rules of law in inverse takings cases, and would instead decide liability, if any, on a case-by-case basis, by examining the facts of each case presented to it, thereby substituting individual judicial factual determinations for a rule of law. Or, as Judge Oakes put it, the court gave us a legal regime in which conflicting precedents [are] simply available as makeweights that may fit preexisting  value judgments. 56 Wash L.Rev. at 613. And our own California Supreme Court told us in the HFH case that court decisions holding that the challenged regulations are takings or legitimate exercises of the police power, are merely the courts’ shorthand way of labeling the results. (15 Cal.3d at 522).

So with a judicial atmosphere like that, not only in takings law but in other fields as well, we should not be surprised when citizens eventually decide that what comes out of the marble palace in Washington, is actually more like a choice of preferred policies than formulating reasoned rules of law, binding in future cases. Thus the wretched subject of reverse discrimination (starting with the De Funis case) has been in a state of continuous litigation for decades with no one able to tell what is and what isn’t improper reverse discrimination. This gives rise to a system in which, in the words of Justice Scalia, a judge “begins to resemble a finder of fact more than a determiner of law,” which in the end is a “concession of defeat — an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application.” Thus, “equality of treatment is difficult to demonstrate and, in a multi-tiered judicial system, impossible to achieve,[*] predictability is destroyed, judicial arbitrariness is facilitated, [and] judicial courage is impaired.”56 U.Chi. L. Rev. at 1187.

But, you say, what does all that have to do with Judge Alex Kozinski whose name graces the title of this post. Only this. A while back he wisely admonished his fellow judges that  “When we act act like politicians, we will be treated like politicians.” As the current kerfuffle over Justice Scalia’s replacement makes clear, Kozinski was right. We now face an unabashedly political battle over filling the Supreme Court vacancy based on partisan perceptions of the substantive views of prospective candidates being advanced for filling Scalia’s seat. And just you wait until the Senate confirmation hearings! For some reason we have a hunch that the word “circus” won’t do them justice. But what do we know?

This is not to say that we pine for some nonexistent “good old days,” when judges were selected from a body of impartial scholars. Partisanship was always an ingredient of presidential selection of judges. It’s the nature of the beast. But the older judicial selection decisions were not as openly or as crudely partisan,  or so openly insistent on elevating reliably partisan individuals to the bench as they are now.

Bottom line: Judge Kozinski’s assessment was sound, and his prophecy came to pass. Judges have been making policy big time, just as politicians do in the elected branches of government. So judicial candidates should not be surprised when the criteria for their appointments are being treated as mere politics — with not just politicians but also the people demanding that if those black-robed folks on high are going to rule them, they should have a say in their rulers’ selection. That, goes their justification, would only be democracy, a process on which this country was founded, and for which our soldiers have bled and died all over the world. Of course, for all its democratic virtues, that would be a lousy way to select nominally impartial judges, but if you insist on rejecting the traditional criterion of judicial impartiality — to the extent it is achievable — that’s what you will get.

So be careful what you strive for because you may get it, and when you do, it may not be what you expected. It may turn out to be the likes of Donald Trump. Or worse.


*     For a perfect example, compare Justice O’Connor’s right-to-take eminent domain decisions in Hawaii Housing Authority v. Midkiff with her dissent in the Kelo case. Now tell us how to reconcile these two opinions. Good luck!