When the cert petition was filed in Ilagan v. Ungacta, No. 12-723 (cert. petition filed Dec. 7, 2012), we wrote that the case seemed like a good vehicle for the U.S. Supreme Court to revisit the pretext-in-eminent-domain issue it teased us with in Kelo, especially the part about the taking being part of a "comprehensive" eminent domain plan.
The facts of the case were egregious. The Guam Supreme Court's opinion reversed the trial court's conclusion that the taking was unconstitutional. The Guam Government refused to appeal, leaving only the benefitted private party arguing the taking was valid. The petition was well done and highlighted the lower court split in authority. When the respondent waived a reponse, the Court requested one. The petition was supported with an amici brief authored by lawprof Ilya Somin, a noted scholar on public use issues and joined by other legal scholars and property owner groups [disclosure: us included], and pointed out that the lower court split was genuine and deep.
The big question we had was whether the Court wanted to revisit the issue.
Today, we got our answer. No, it doesn't (see p. 15).
Which leaves us to ask: if not these facts, which facts? If not this case, which one? All we're left concluding is that the Court's majority was so burned by the public's reaction to its opinion in Kelo that it may be a while before four of the Justices are willing to get anywhere near a Public Use case.