Supreme Court

How Ruth Bader Ginsburg Disappointed The New York Times


In the recently decided case of Arkansas Game & Fish Commission v. United States, the federal government took the position that a series of destructive floods induced by the U.S. Army Corps of Engineers should be automatically exempt from the Fifth Amendment's requirement that just compensation be paid when property is taken for a public use because the flooding in question was temporary in duration, not permanent. That fishy argument failed to command even a single vote on the Court, which ruled 8-0 on Tuesday (with Justice Elena Kagan recused) against granting "a blanket temporary-flooding exception to our Takings Clause jurisprudence."

Did anyone think the federal government had a decent case? The editorial board of The New York Times did. In an unsigned editorial published a few days after the October oral argument, the Times urged the Court to whittle away at the Takings Clause. "If [the Army Corps of Engineers] and other agencies that manage natural resources for the government had to worry about liability for takings for every management decision," the paper declared, "they would lose the flexibility they need."

It's not everyday when The New York Times butts heads with liberal Justice Ruth Bader Ginsburg, but Tuesday was such a day. Here is Ginsburg's opinion for the Court rejecting the "flexibility" argument made by the federal government and its friends at the Times:

Time and again in Takings Clause cases, the Court has heard the prophecy that recognizing a just compensation claim would unduly impede the government's ability to act in the public interest. We have rejected this argument when deployed to urge blanket exemptions from the Fifth Amendment's instruction.

NEXT: Ed Henry: Substantive, Fair Questions Being Dismissed as Partisan

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  1. We should probably do away with that pesky, inflexible Constitution entirely. It’s, like, 100 years old.

    1. I think that’s what the Times was getting at, except maybe part of the First Amendment. They’ll want that kept.

      1. Only the free press part. Making laws telling religious people what they can or can’t do? I’m sure they’d just love that.

        1. They dont want a free press either, they opposed Citizens United.

          1. That’s different!
            That’s corporations!
            They’re the root of all evil!

            1. NYT is a corporation.

              1. Yes, but they’re on the side of the angels, Rob, and thus not subject to all of the liberty-stomping ideas they promote.

              2. Some corporations are more equal than others.

                1. They’ll make sure there is an exception for “objective” “truthful” journalistic organizations.

                  1. In that case, Hazel, I’d expect the stormtroopers will be kicking in Pinch’s door any day now.

                  2. Properly licensed and regulated by the government, of course.

          2. They interpret the press clause as a special right for a class of officialdom called The Press.

            1. For Warty: Catdance — they’re not cat videos, they’re cat films.

              It’s looks a little gimmicky, but I clicked on the Covetous Cat video, and that Tom could teach Kat Dennings a thing or two about emotional range. I watched a clip of her show the other day and they made the mistake of not showing her boobs for a full two minutes. It made me aware her acting is flat.

  2. “If [the Army Corps of Engineers] and other agencies that manage natural resources for the government had to worry about liability for takings for every management decision,” the paper declared, “they would lose the flexibility they need.”

    Translation: If the government has to act under the rule of law, they won’t have the flexibility to do whatever they want. We can’t have any constraints on government power, because then they wouldn’t be able to do stuff.

    1. “they would lose the flexibility they need.”

      It is worrisome to me that this is the same argument they keep using for everything – warrantless searches of cell phone records, lack of due process in the war on terror, executive-branch infringement on legislative functions, claims of administrative law supremecy as in the recent EPA case – and, as ridiculous as the argument seems, as much as your first reaction is to scream “No shit, you dumb fucks, that is the exact purpose and intent of the Constitution!”, the more they make the argument, the more familiar the argument becomes, the less bat-shit insane the argument seems.

      The problem is that the very idea of laws, rules, standards, principles, all constraints on behavior is, at heart, a conservative idea. Conservatives generally believe that it is better to leave bad enough alone, that changing things, more likely than not, is going to make things worse – because people generally are stupid.

      Liberals, on the other hand, just know that however stupid conservatives are, they themselves are wise and all-knowing and are perfectly capable of remaking the world in their own image. Why would you want to constrain the power of Good People such as themselves?

      1. As much as it may sound like sarcasm or criticism to suggest that liberals don’t have a problem with Obama and the Democrats doing the exact same things they complained about Bush and the Republicans doing, it’s not. Liberals seriously do not have a problem with the idea of unlimited power for themselves but not for others. There are no principles or rules or standards involved here – liberals reject the idea that there are such constraints for themselves.

        Which is why libertarians are well and truly fucked more than anybody – libertarians adhere to principles moreso than most. Calling a liberal unprincipled or hypocritical has the same effect as calling them an ostrogeez or granthamused – they really have no idea what the words mean.

        1. Right. The argument pretty much boils down to: “But, but … we can’t have laws that prevent us from doing stuff!”

          Any sort of constitutional constraint on government power that interferes with implementation of a of progressive project is viewed as some sort of problem that needs removal, rather than as a principled constraint on abuses of power.

          1. That’s why I throw Jim Crow in progressives’ faces every chance I get. The progressives loved segregation back in the pre WW-I days, and it’s typical of the way they were quite happy to suspend the rights of individuals when it interfered with the freedom of the majority to order society in ways it desired.

          2. It has been said before, and should be reiterated as many times as possible: one should imagine only the political opposition having power when drafting new legislation.

            The only thing each team ought to contemplate is how the other team would use that power.

        2. And the thing is – we knew Obama had every intention of ruling as an emperor and we elected him. Doesn’t that mean that we have endorsed the imperial presidency? Just read this unilateralist manifesto.

          Badges? We don’t need no stinking badges!

          1. Ya know, at least the fucking Nazis had the decency of voting on an Enabling Act.

            1. See the defense authorization act….

              1. Hard to quibble with that.

  3. “Dersss a gud little boy Obama, ohhh look how cute you are, come to Auntie Ginsburg!”

  4. Its in moments like this, that the NYT shows what totalitarian fucks they are.

  5. How about we route that river through the editorial offices of the NYT and see how “flexible” they want the Corps to be then?

    1. The NYT office only exists because of eminent domain abuse.

  6. Damon disappointed the commenters by punting on alt-text.

    1. Damon is above all of that petty alt-text nonsense. Either that, or he doesn’t know how to do it.

      1. Did you just call alt-text petty?

        I’m taking you off the “Do not kill” list.

        1. I was presenting Mr Root’s view of alt-text. As opposed to Suderman, whose alt-text skill is the only thing the people at reason HQ have to look up to him for.

          1. …Okay. You’re back on the list.

        2. Shhh! It’s the Predisposition Matrix now.

  7. The NYT is so mad at Ginsburg, they’re almost wishing they hadn’t given her a pass with her eugenics comments.

    1. Why wouldn’t they give her a pass? The NYT is progressive, and eugenics was foursquare a progressive initiative. Science!!

  8. I was going to rant, but HazelMeade nailed it first.

  9. I want this link on the page cuz I am saving it for a liberal friend of mine. I can hardly wait for the stuttering and stammering and cognitive dissonance.…..understand

    1. I want to reply to your post, but it was written in the past and so I’m just baffled as to what it might mean.

  10. why the heck did kagan recuse herself from this and not from obamacare?

  11. Another provocative thought cut and some fantastic comments. recognition for sharing.

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