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Saturday, June 25, 2005
O'Connor's dissent
Kelo | Posted by Ilya Somin at 05:12 PM
I am not the world's greatest fan of Justice O'Connor's judicial philosophy, and like many Kelo critics, I believe that J. Thomas' approach is the better way to go. However, O'Connor's argument is not nearly as indefensible as Marty Lederman and others claim.
First, it would NOT be necessary to overrule 100 years of precedent to go O'Connor's way. As I explain in an earlier post, virtually all the US Supreme Court takings cases in the first 50 years of that period were not actually decided under the Takings Clause at all, but under the Due Process Clause of the Fourteenth Amendment. Essentially, they held that the Lochner era Substantive Due Process doctrine put relatively modest constraints on takings, at a time when the Takings Clause had not - as yet - been held to be incorporated against the states. This is perfectly consistent with holding that the Takings Clause (setting aside the difficult issue of incorporation, which applies to the entire Bill of Rights and not just the Takings Clause), which after all explicitly deals with eminent domain, puts tighter limits on takings. Moreover, as Thomas points out, virtually all these early cases did in fact involve condemnations for public ownership or for common carriers. So all that would have to be "overruled" from this era is a few snippets of expansive rhetoric, some of which is probably dictum (Thomas' opinion does a good job of laying out the details on these 2 points).
Nor would it be necessary to repudiate Berman v. Parker, which upheld blight condemnations. Numerous state supreme courts - most recently Michigan in its reversal of Poletown in the Hathcock case - forbid economic development condemnations while still allowing blight condemnations. This is precisely what O'Connor advocates in her dissent.
And the rationale for doing so is a serious one, though I don't fully agree with it: When property is condemned for blight, the main goal is to remove the blight that is there, so the future activities of the new owner matter far less for the achievement of the ostensible goal of the taking than in a case like Kelo, where the goal can only be achieved if the new owner provides economic benefits to the community. Thus, as many courts put it, in blight condemnations the transfer of property to a new private owner is only "incidental" to the purpose of the taking because the main goal - eliminating blight - is achieved by the mere fact of eliminating the preexisting uses of the land - which is usually done by tearing them down while the property is still in government hands. I personally favor banning or at least severely constraining blight condemnations, but one doesn't have to take that view to support O'Connor's dissent.
Finally, it is the case that O'Connor's position DOES require overruling some of the more expansive rationales of Midkiff and perhaps Berman. But she explicitly urges this when she repudiates these cases' conclusion that the eminent domain power is coextensive with the police power. And even Stevens' majority opinion (as well as Kennedy's concurrence) fails to apply Midkiff's most extreme holding - that a public use is anything "rationally related to a conceivable public purpose." David Barron, Tom Merrill, and other Kelo defenders seem to agree in their posts below that this rule is no longer the law after Kelo. On this issue, O'Connor is - gasp! - so radical that all nine justices seem to agree with her.
The bottom line: it is not unusual for the Supreme Court to narrow the scope of past precedent by cutting back on its rationale rather than overrule it entirely. Even Brown v. Board failed to explicitly overrule Plessy v. Ferguson. O'Connor's dissent is very much in this long-established tradition.
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