Marty Lederman Reports from Today’s Oral Arguments
Marty reports that, based on the impression left by the oral arguments, the government-side is going to win today’s property rights cases overwhelmingly.
In Kelo, the plaintiffs may get as many as three votes: Scalia; Thomas (who did not ask any questions); and Rehnquist (who was not there). But it was clear to O’Connor and Kennedy that the Court would have to overrule Midkiff and Berman to rule for the plaintiffs, an approach for which there was no majority. The only possible silver lining for property-rights advocates was that Justices Kennedy, Souter, O’Connor and Breyer all expressed concern that the traditional measures of just compensation under the Fifth Amendment may be subject to reconsideration. Justice Kennedy acknowledged the question wasn’t presented in Kelo, but the Court’s opinion or a concurrence may raise the issue, opening a new avenue of property-rights litigation.
In Lingle, it appears that the government will win unanimously. As Justice Scalia put it at argument, the Court may have to “eat crow” and abandon the suggestion it has made in several cases that there is a “substantially advances” test for what constitutes a taking.
The moment of the day came in Kelo when the city’s counsel attempted to close by saying, “I want to leave you with just four words,” then his time expired. (Although he did say — using more words, “I see my time has expired so I won’t be able to tell you them.”) Justice Kennedy then asked the plaintiff’s lawyer on rebuttal, “You don’t happen to know what the four words were?” Regrettably, he didn’t.
Clouds of Kelo
As a followup to my post yesterday about Kelo v. New London, I should note that Marty Lederman at SCOTUSBlog has an account of the oral arguments in Kelo in Court today. Things do not look good for our heroes….
Comment by Crescat Sententia — February 22, 2005 @ 1:35 pm
Skim: Legal Littany
Across the board, there is much of interest going on in the legal world: Professor Erwin Chemerinsky, as reported at the ACSBlog, shares his First Amendment concerns about terrorism-related cases being persued by the federal government. Several people,…
Comment by Law Dork — February 22, 2005 @ 1:53 pm
Funny Item from Today’s Property Rights Arguments:
SCOTUSblog (Tom Goldstein relaying Marty Lederman’s accounts) reports that the argument generally went badly for the broader-property-rights…
Comment by The Volokh Conspiracy — February 22, 2005 @ 2:04 pm
ALAS . . .
The oral argument in Kelo appears not to have gone well for those who are on the side of the angels. I suspect that at the very least, Scalia, Thomas and Rehnquist will side with the property owners, but O’Connor…
Comment by Pejmanesque — February 22, 2005 @ 3:46 pm
Mas Classiness From Other Blogs.
Professor Bainbridge- [who, incidentally, never even acknowledged my responses to his questions about Social Security, which borders on totally unclassy and way lame on his part] Examines the case before the Supreme Court Kelo v. New London, regarding …
Comment by WILLisms.com — February 22, 2005 @ 4:08 pm
Kelo Arguments
Here’s to hoping the situation isn’t as bleak as the reporter suggests. Furthermore, I’m not sure that the Court would necessarily have to overrule Midkiff and Berman to rule for the plaintiffs. Comments later…if only there were more hours in the day.
Comment by JurisPundit — February 22, 2005 @ 4:14 pm
Will Leviathan Prevail?
Today the Supreme Court will hear argument in a case that, as lawyer Martin Garbus put it in the LA Times, will decide the question
Comment by ProfessorBainbridge.com — February 22, 2005 @ 5:11 pm
Hi,
This comment is unrelated to the merits of Kelo. But with both Justice Stevens and Chief Justice Rehnquist absent today, and Justice O’Connor presiding, I wondered whether today is the first oral argument where a woman presided at the Supreme Court?
Comment by Richard Cooke — February 22, 2005 @ 5:22 pm
This review of the oral arguement indicates the death knell for private property rights will soon be tolling.
Comment by Ignatius Reilly — February 22, 2005 @ 7:58 pm
America the land of the soon to be screwed?
We have been told for so long that America is land of freedom, but Kelo v. New London and Terri Schiavo’s case present a direct, unavoidable challenge to that assertion. Tomorrow, two of the greatest liberties that form the very…
Comment by Blind Mind's Eye — February 22, 2005 @ 10:38 pm
Kelo
Oral arguments on the Kelo case were today.
Comment by In Re: — February 22, 2005 @ 11:55 pm
Here is my guess for New London’s last four words: “Everything belongs to us”. Of course “All your base are belong to us” would have been better, but that is seven words.
Comment by coyote — February 23, 2005 @ 11:53 am
Post-Kelo Roundup
The initial reports of the oral arguments from the two eminent domain cases were decidedly pessimistic. But, like the exit polls on Election Day, the accuracy of those early descriptions is now being questioned.
Comment by A Stitch in Haste — February 24, 2005 @ 11:40 am
Government to Steal Drugs?
Barbara T. Dreyfuss has a disturbing piece in today’s American Prospect.
Unless the drug industry starts to negotiate significantly lower prices, it may find itself battling debt-strapped states for control over the manufacture of drugs. States alr…
Comment by Outside The Beltway — February 24, 2005 @ 11:56 am
Law and Lyrics Friday
Given the markedly dreary outlook that seems to be prevailing in the eminent domain case, Kelo v. City of New London, I couldn’t help but recall the Kinks’ best album, Muswell Hillbillies. As a whole, it’s one of the best…
Comment by Mean Mr. Mustard 2.0 — February 25, 2005 @ 6:09 pm
Weekend Reading: Kelo v. New London
Dig in— A sampling of blogger commentary on one of the more significant property rights cases to reach the Supreme Court: READ OUR TAKE HERE. Here (Legal Affairs–Epstein/), here (Professor Bainbridge), here (SCOTUSblog), here (Slate), here (City …
Comment by Local Liberty — February 25, 2005 @ 7:36 pm
Chalk one up for Leviatan.
Comment by Shirley Spira — June 8, 2005 @ 3:43 pm
Mas Classiness From Other Blogs.
Click to explore more WILLisms.com. Professor Bainbridge- [who, incidentally, never even acknowledged my responses to his questions about Social Security, which borders on totally unclassy and way lame on his part] Examines the case before the Supreme…
Comment by WILLisms.com — July 26, 2005 @ 11:37 am