No second-guess on Kelo
The Supreme Court on Monday refused — as it was expected to do — to reconsider its controversial ruling expanding the power of local governments to seize private property for economic development. The action came as the Justices issued several routine orders while the Court remains in its summer recess. (The case was Kelo v. City of New London, 04-108; the Court divided 5-4 in that decision.).
The Court’s rules make it exceedingly difficult for a party to gain a rehearing of a decided case. Even so, property rights advocates had tried that maneuver as part of an energetic campaign to keep the issue alive and thriving. Efforts are being made in a number of state legislatures and in Congress to curb the use of the power of “eminent domain,” even though the Court had enhanced that authority if local officials opt to use it.
Monday’s list of orders indicated that Justice Sandra Day O’Connor was continuing to participate in the Court’s work over the summer. One of the orders — a denial of rehearing — indicated that she had disqualified herself from that particular action, a sign that she had taken part in all of the other orders. Forty-four cases were denied rehearing, including Kelo.
O’Connor has said she would continue to serve until her successor is qualified. That is expected to occur early in the new Term that opens Oct. 3.
Among Monday’s orders, the Court agreed to allow the Solicitor General to join in arguing for the federal government in 04-698, Schaffer v. Weast, a test of whether parents or public school officials have the burden of proof in a dispute over the educational placement of a disabled child. The case is scheduled for oral argument on Wednesday, Oct. 5.
I was surprised by the amount of press coverage given to the denial of rehearing in this case. When was the last time the Supreme Court actually granted rehearing in a fully briefed, argued, and decided case? I can’t remember a single one in the 19 years I have been doing Supreme Court work. In the wake of Booker they granted rehearing on some cert. denied cases, but for cases fully decided on the merits, I don’t believe it has happened in modern history. So, the Court denied rehearing, the sun rose in the East, and Generalissimo Franco is still dead, all equally newsworthy.
Comment by Kent Scheidegger — August 24, 2005 @ 3:31 pm
There is no “news” in the denial of rehearing; but then again, there is no real “news” in the upholding of the 50-year old Berman v. Parker precedent either, and yet we read endlessly about Kelo. It’s news because the public is interested, not because the Supreme Court has done anything bizarre or unexpected.
Comment by Steve M — August 29, 2005 @ 1:44 pm