Sunday, November 06, 2005
A notable feature of the majority opinion in Kelo is its straightfaced invocation of legislative deference. It would be presumptuous of the Supreme Court, Justice Stevens argued, to second-guess the considered judgment of local authorities over the details of urban revitalization. Such deference is a laudable concept, but it makes only cameo appearances on the liberal stage. It is strangely absent from the liberal temperament when the subject under review is, for example, the regulation of abortion or the presence of religion in the public square. Legislative deference in such matters suddenly gives way to "strict scrutiny," a self-empowering interpretive rule invented by the Court for those occasions when it wishes to question legislative purpose and its possible adverse effects.