Earlier, we posted Justice Scalia’s assertion at a recent conference that Kelo ranked among the top all-time blown calls by the Supreme Court. While the Kelo majority opinion is decidedly foul, does it really sink to the level of Dred Scott, the opinion in which the Court concluded that Africans could never be U.S. citizens?
Well, one writer doesn’t think so. In the Atlantic, Garrett Epps writes “Can Eminent Domain Be as Bad as Slavery?” While there is much we agree with in Mr. Epps’ piece, especially his conclusion (we’re sorry, eminent domain abuse, as bad as it is, is not quite as bad as concluding that a class of people are simply incapable of being citizens because they are somehow lesser humans — that’s just repugnant), we don’t buy in wholly to his reasoning.
He outlines three reasons why Justice Scalia’s dislike of Kelo is contrary to — or at least inconsistent with — the jurisprudence already staked out by Justice Scalia in other cases; you know, things like “state’s rights,” “activist” judges, and so forth. First, he argues that Scalia prefers the democratic process to courts, and that the issue in Kelo — whether economic development takings can never be public uses — was in fact resolved by democratic action in state and local legislatures (and courts) as a reaction to Kelo. Second, he argued that Scalia believes in “state’s rights” and that at its heart, the majority opinion in Kelo allowed the states broad latitude in how to exercise eminent domain power. Finally, he argues that Scalia objects to “activist” judges, and the Kelo majority essentially said that federal judges should take a “hands-off” approach to eminent domain.
On accusations that Justice Scalia is internally inconsistent, our sense is that he is like honey badger: he just don’t care. So far be it from us to try and defend him. But here are some thoughts about Kelo to add to the above.
First, that state and local legislatures responded to the Kelo majority opinion by backing off economic development and other abusive takings hardly seems like an endorsement of the soundness of Kelo‘s rationale. That’s sort of like saying Dred Scott was a good decision because the Reconstruction Amendments were the end result. The people via their legislatures simply picked up the ball the Supreme Court dropped. Indeed, the widespread popular revulsion of Kelo is a strong indicator the majority got it wrong.
Second, we thought the whole purpose of the Bill of Rights (and the Fourteenth Amendment which incorporates these rights against state action) is to make certain rights very difficult for the government to intrude upon. Why it’s a good thing that property rights are subject to the vicissitudes of the political process — especially as it plays out on the local level and in redevelopment schemes, where it seems that money and influence carry the day — when other rights such as speech are not, is not at all clear to us. In one sense, the majority opinion in Kelo was beyond predicatable: those of us who filed amicus briefs knew that the biggest hurdles to overcome were (1) the Berman and Midkiff cases, which together virtually abdicated the judicial role in determining a taking’s “public use,” and (2) the “case by case” fetish of the critical vote, Justice Kennedy, who would not likely endorse the bright line rule advocated by Ms. Kelo. It turned out our fears were justified, but just because Berman had been around for half a century didn’t make it any less wrong, and it did seem that certain types of condemnations such as economic development takings were so rife with problems and the potential for abuse that the Court could say that using it as a rationale was not constitutionally tolerable.
And finally, why it is perfectly acceptable for judges to be “activist” when it comes to protecting speech, religion, and other Bill of Rights rights, but when it comes to property rights they get all squeamish and suddenly deem themselves incompetent to review things like blight or a redevelopment plan? After all, when applying environmental laws such as NEPA, HEPA, and CEQA, these same judges review development proposals and regularly find them inadequate. Why there is a difference is beyond us.
Brad Kuhn, our colleague over at the California Eminent Domain Report also comments on Scalia’s remarks here.