Comments on: Kelo Opinions

By: eric

eric — Thu, 23 Jun 2005 17:41:58 +0000

What’s up with Note 18?

By: ohwilleke

ohwilleke — Thu, 23 Jun 2005 16:55:17 +0000

The Quoted Language from the Thomas Dissent About Castle Rock is:

“We would not defer to a legislature’s determination of the various circumstances that establish, for example, when a search of a home would be reasonable, see, e.g., Payton v. New York, 445 U.S. 573, 589—590 (1980), or when a convicted double-murderer may be shackled during a sentencing proceeding without on-the-record findings, see Deck v. Missouri, 544 U.S. ___ (2005), or when state law creates a property interest protected by the Due Process Clause, see, e.g., Castle Rock v. Gonzales, post, at __; Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576 (1972); Goldberg v. Kelly, 397 U.S. 254, 262—263 (1970).”

By: Andy Siegel

Andy Siegel — Thu, 23 Jun 2005 16:51:29 +0000

I agree with Phil that the reference is ambiguous and likely refers to the narrow preliminary point. I think it is of limited predictive value. About all I will say is that the reference (1) makes it extremely likely that the Court is very fractured on the question of whether the Colorado statutes created a liberty interest (but we all could have guessed that already) and (2) makes it a little bit more likely that Justice Thomas was on the losing end of that debate (because it is the kind of cross-substantive zing that dissenters like to get in, e.g., Justice Stevens in Dodd).

By: Accidental Verbosity

Accidental Verbosity — Thu, 23 Jun 2005 16:36:15 +0000

Umited States Constitution, 1788 - 2005: Promise Lost

Via Gay Orbit and SCOTUSblog, the Kelo decision is in, and it's a sad day in a string of many for The Constitution. Apparently some of the Supreme Court Justices ran out of toilet paper and needed something to replace it. Thomas dissents, natur...

By: Mover Mike

Mover Mike — Thu, 23 Jun 2005 16:32:53 +0000

Kelo v. City of New London, Decision!

After writing so much about Kelo v New London here and here, I’m deeply disappointed in the decision by SCOTUS. I…

By: phil

phil — Thu, 23 Jun 2005 16:25:55 +0000

Andy: that citation could be ambiguous, since it could be referring either to a narrow preliminary point that the SCOTUS will independently review such a due process violation or to a conclusion that plaintiff’s due process was indeed violated.

Some observations:

Payton, Deck, and Goldberg found due process violations, but Roth found no due process violation.

Goldberg didn’t discuss deference. I don’t think Payton did either.

Thomas of course dissented in Deck, and here he’s citing the majority opinion.

By: Andy Siegel

Andy Siegel — Thu, 23 Jun 2005 15:49:37 +0000

Justice Thomas cites to the Castle Rock opinion in his concurrence, even though it is not yet released.

Two questions:
(1) Is that the firs time that has happened?
(2) Can anyone get anything substantive about the outcome of that case from Thomas’s reference?

By: phil

phil — Thu, 23 Jun 2005 15:42:28 +0000

From Kennedy’s concurrence:

[W]hile there may be categories of cases in which the transfers are so suspicious, or the procedures employed so prone to abuse, or the purported benefits are so trivial or implausible, that courts should presume an impermissible private purpose, no such circumstances are present in this case.

Anyone else having flashbacks to Vieth?