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Friday, June 24, 2005
Did O'Connor lose the majority?
Kelo | Posted by Eric Claeys at 10:05 AM
Over at the Volokh Conspiracy, Orin Kerr wonders whether Justice O'Connor's dissent was originally a majority opinion. I had the same reaction when I first read it. I think the answer is no, but I'd be curious what others think.
Reasons why it might have been a majority:
1. Part I of O'Connor's opinion is a statement of facts. Normally, dissents don't restate the facts unless they think there is some added polemical value in doing so. (For one excellent illustration, consider Justice Scalia's dissent in Morrison v. Olson.) Otherwise, a statement of facts is sometimes a tip-off that the dissenter writing for 4 justices lost a fifth.
2. O'Connor is _really_ mad in her dissent. The anger is really surprising given that she paved the road for Stevens' Court opinion when she wrote Midkiff 20 years ago. Maybe it was the anger of a majority-opinion writer scorned.
3. Justice Kennedy's concurrence suggests he's teetering on the fence on this issue. And it wouldn't be the first time he's changed his mind after conference.
But at the end of day, I don't think so. Reasons why:
1. As the GoldsteinHowe OT 2004 merits docket shows, O'Connor already had a majority opinion from the sitting in which Kelo was decided, namely Lingle.
2. While O'Connor's dissent is strong on policy and cites to Hamilton & Madison, I don't think it does as much work as a majority opinion would have needed to do to get the job done. O'Connor argued for deciding the case on the ground that economic development, standing alone, does not count as a satisfactory public use. To pull that off in a majority opinion, one would need to distinguish satisfactorily Midkiff and especially Berman. There's only a narrow difference in local practice between blight condemnations (Berman) and economic-development condemnations (Kelo). If a 5-4 majority were standing on that difference, I think O'Connor would have needed to explain at greater length her legal theory for distinguishing between the two.
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