« Commentary by Kelo's lawyers | Main | Why the outrage? »
Saturday, June 25, 2005
Is the Lead Dissent in Kelo Defensible?
Kelo | Posted by Marty Lederman at 12:46 PM
Kelo has been met with howls of outrage in the blogosphere and in the popular press. Indeed, it’s hard to recall any recent SCOTUS decision that has been so roundly and vociferously attacked. One might think that the Court had done something radically new and unexpected here.
But that’s simply not so, right? Kelo is entirely consistent with well over 100 years of established precedents, as Justice Thomas’s dissent basically (and refreshingly) concedes. Justice Stevens’s analysis, so consistently vilified online and in the press, is actually quite simple and straightforward: New London’s proposed condemnations are for a “public use” “[b]ecause over a century of our case law interpreting [the Just Compensation Clause] dictates [that] answer.” (I should add here that it is apparent that both Justice Stevens and Justice Thomas relied heavily on Tom Merrill’s wonderful amicus brief, which recounted the historical precedents in great detail.)
Does anyone disagree with this? In order for Kelo to win, wouldn't the Court have had to overturn numerous longstanding precedents? Justice Thomas himself identifies at a dozen that he would overrule, going back to 1896, and his list doesn’t even include the recent decisions in Monsanto and Brown (the IOLTA case). Moreover, these holdings were often unanimous (e.g., the two leading cases, Berman and Midkiff), or issued without dissent.
Thus, I agree with Nicole that the truly shocking thing about Kelo is not the majority opinion, but instead that IJ was able to secure four votes to reverse. Three of those votes are not, perhaps, so surprising. But Justice O’Connor’s certainly was: She did, after all, write Midkiff (and Lingle). And hers was the fifth vote just two years ago in Brown, in which the Court reasoned that property may be taken for any use that could legitimately be supported by special taxes, or user fees—such as, in that case, to subsidize legal services for the poor. 538 U.S. at 232. This is (as it ought to be) simply the “rational basis” test ordinarily applied under the due process clause. (I am a bit surprised that the “public use” holding in Brown did not play a more prominent role in Kelo, barely being cited in the briefs and mentioned only in passing in note 14 of the Court’s opinion. Justice Scalia well understood the breadth of the “public use” holding in Brown. He complained in his dissent in that case that “[t]his reduces the ‘public use’ requirement to a negligible impediment indeed, since I am unaware of any use to which state taxes cannot constitutionally be devoted. The money thus derived may be given to the poor, or to the rich, or (insofar as the Federal Constitution is concerned) to the girlfriend of the retiring Governor.” Id. at 242-243 n.2.)
Justice Thomas, as is his wont, would have the Court repudiate more than a century of law. Much of the online commentary, especially that of a libertarian bent, is basically along these same lines. Which I suppose is fine, as far as it goes, but I think we’d all concede that it’s a nonstarter for eight of the nine Justices, and that by the time there is a Court majority in support of the convulsive changes advocated by Justice Thomas in cases such as Kelo, Raich, Sabri, Lopez, etc.—with Justices Brown and Pryor and two like-minded colleagues joining Justice Thomas—ours will be a very different Nation, and such doctrinal moves will be the least of our concerns.
But is there anyone out there willing to defend Justice O’Connor’s opinion? She ignores many of the cases (including Brown). Although she would reject much of the central reasoning of Berman and Midkiff, she doesn’t join Justice Thomas’s call to overrule the holdings. What is her rationale for distinguishing them? As I read her opinion, she attempts two sorts of moves.
First, she offers a distinction between condemnations that eliminate previously “harmful” uses of property and those that don’t. Justice Stevens limits his response to a footnote (note 16), which is probably more than it deserves: This proposed distinction couldn’t deal with many of the governing cases, including Berman itself, as well as Monsanto, Brown, and several of the earlier cases that Justice O’Connor simply ignores. (More on this by Helvidius over at Ex Post.)
The second O'Connor move is not to offer any distinction at all, but instead simply to argue that any notion of “public use” (e.g., for economic development) that has no logical stopping point must be invalid. This is similar to the Chief Justice’s “reasoning” in Lopez—i.e., not to prescribe any affirmative test, but simply to reject any test that would (in the Court’s view) effectively foreclose any meaningful judicial review. That mode of reasoning has not had much success, or lasting power, in Commerce Clause doctrine (see Guillen, Raich), and I imagine it would have been similarly inefficacious and unsuccessful here, too.
This is not to say that the Court would have had to overrule Midkiff, Berman, et al., in order to reverse. As we now know (see Bush v. Gore), there’s no such thing as an opinion that “doesn’t write,” and the Court can do most anything it wishes—indeed, Justice O’Connor could have written a “we’ll know a non-public use when we see it” sort of opinion (which, in fairness, is essentially what she did). But was there a coherent, defensible way to reverse the judgment without significant overruling?
There are, of course, those who would affirm the holdings of prior cases while rejecting their rationales—Nicole, for instance, would favor a more stringent means/ends test. But does everyone agree that some such radical shift—or, more fundamentally still, Justice Thomas’s approach—would have been necessary, and that Justice O’Connor’s opinion doesn’t cut it? Conversely, does anyone actually think that the Stevens opinion is deficient, assuming that the Court was reluctant to overrule well-established, governing precedents?
Trackback Pings
TrackBack URL for this entry:
http://www.scotusblog.com/movabletype/mt-tb.cgi/547
Listed below are links to weblogs that reference Is the Lead Dissent in Kelo Defensible?:
» Disappointment and Dismay cried the needles and pins from Crescat Sententia
Kaimi Wenger is "disappointed" and surprised by the outrage that Kelo has engendered in the blogosphere. and Marty Lederman asks similar questions. The answer, which I hope is obvious, is that a lot of people think the court's decision was... [Read More]
Tracked on June 26, 2005 06:28 PM
» Disappointment and Dismay cried the needles and pins from Crescat Sententia
Kaimi Wenger is "disappointed" and surprised by the outrage that Kelo has engendered in the blogosphere. and Marty Lederman asks similar questions. The answer, which I hope is obvious, is that a lot of people think the court's decision was... [Read More]
Tracked on June 26, 2005 06:28 PM
» A Kelo of Overreaction from PrawfsBlawg
I have never been so disappointed with the legal blogosphere. [Read More]
Tracked on June 27, 2005 12:25 PM
» mlm leads from mlm leads
mlm leads [Read More]
Tracked on August 7, 2005 01:18 PM
» mlm leads from mlm leads
mlm leads [Read More]
Tracked on August 7, 2005 01:18 PM
» wagering poker online links from wagering poker online links
You may find it interesting to take a look at some information about Online Poker Hacks [Read More]
Tracked on August 8, 2005 03:46 PM
» wagering poker online links from wagering poker online links
You may find it interesting to take a look at some information about Online Poker Hacks [Read More]
Tracked on August 8, 2005 03:47 PM
» Free horny sex tales from Nude fuck clip
Indian sexy photos girls Nazi rape fantasy Incest manga comics drawings Download sex snuff [Read More]
Tracked on August 18, 2005 03:49 PM
» date rape from
anal rape domestic violence domestic violence brutal dildo brutal sex hentai rape [Read More]
Tracked on August 21, 2005 03:46 PM
» rape video from
date rape humiliation anime rape rape pictures rape video rape fantasy [Read More]
Tracked on August 21, 2005 03:46 PM
» anime rape from
rape videos brutal dildo free rape stories brutal sex brutal dildos fantasy forced sex [Read More]
Tracked on August 21, 2005 03:46 PM
» internet wagering from internet wagering
internet wagering [Read More]
Tracked on August 28, 2005 08:00 AM
» internet wagering from internet wagering
internet wagering [Read More]
Tracked on August 28, 2005 08:00 AM
» free card game from free card game
casino card game
baccarat card game
card game
[Read More]
Tracked on August 29, 2005 06:14 AM
» free card game from free card game
casino card game
baccarat card game
card game
[Read More]
Tracked on August 29, 2005 06:14 AM
» gay black muscle porn from gay black muscle porn
picture free anal sex, gay man sex picture gay men having sex, sexy boy f... [Read More]
Tracked on August 30, 2005 06:47 PM
» ladyboyguide from ladyboyguide
fat girl, sex movie gallery shemale, ladyboy philippines bbw big black fat... [Read More]
Tracked on August 31, 2005 08:26 AM
» anime character from anime character
star war character
cartoon character
disney character
[Read More]
Tracked on August 31, 2005 11:56 PM
» anime character from anime character
star war character
cartoon character
disney character
[Read More]
Tracked on August 31, 2005 11:56 PM
» free muscle gay pics from free muscle gay pics
russian dreams boys gays, gay gallary, young pic gays free gay gay dick shemale fuck gi... [Read More]
Tracked on September 7, 2005 01:52 AM
» texas holdem from texas holdem
Please check out some helpful info in the field of pacific poker online poker [Read More]
Tracked on September 9, 2005 03:50 AM
» gay porn preview videos from gay porn preview videos
password to ladyboyguide, alprazolam medication, [Read More]
Tracked on September 10, 2005 11:25 AM
» gays from
gay sex tiffany teen gay men teen lesbians gay guys gay cartoons [Read More]
Tracked on September 16, 2005 08:04 AM
» porn clips shemale from porn clips shemale
shemales porn clip, buy phentermine online, cock thailand ladyboys bl... [Read More]
Tracked on September 24, 2005 10:13 AM
» terra firma from terra firma
terra firma [Read More]
Tracked on January 1, 2007 09:28 PM
» giochi pc scaricare gratuiti from giochi pc scaricare gratuiti
giochi pc scaricare gratuiti [Read More]
Tracked on January 4, 2007 11:35 AM
» rape pics from rape pics
rape pics [Read More]
Tracked on March 25, 2007 01:36 PM
» rape pictures from rape pictures
rape pictures [Read More]
Tracked on March 27, 2007 08:50 AM
» rape pics from rape pics
rape pics [Read More]
Tracked on March 28, 2007 02:00 AM
» Incest from Incest
Incest [Read More]
Tracked on April 6, 2007 01:35 PM
» Incest from Incest
Incest [Read More]
Tracked on April 13, 2007 08:41 PM
» Incest from Incest
Incest [Read More]
Tracked on April 14, 2007 04:33 PM
» Incest Sex from Incest Sex
Incest Sex [Read More]
Tracked on April 29, 2007 01:55 PM
» Rape from Rape
Rape [Read More]
Tracked on April 30, 2007 09:20 PM
» Rape videos from Rape videos
Rape videos [Read More]
Tracked on May 6, 2007 06:42 PM
» biglietto invito compleanno from biglietto invito compleanno
biglietto invito compleanno [Read More]
Tracked on May 12, 2007 09:27 PM
» business opportunity small from business opportunity small
business opportunity small [Read More]
Tracked on May 13, 2007 07:41 PM
» world of warcraft gold with money order from world of warcraft gold with money order
world of warcraft gold with money order [Read More]
Tracked on June 12, 2007 01:54 AM