The Opinion Journal has a screedy piece on the Kelo v. New London decision, and it appears that thde decision is only going to ramp up the rhetoric in the current fight over the judiciary:
So, in just two weeks, the Supreme Court has rendered two major decisions on the limits of government. In Raich v. Gonzales the Court said there are effectively no limits on what the federal government can do using the Commerce Clause as a justification. In Kelo, it’s now ruled that there are effectively no limits on the predations of local governments against private property.
These kinds of judicial encroachments on liberty are precisely why Supreme Court nominations have become such high-stakes battles. If President Bush is truly the “strict constructionist” he professes to be, he will take note of the need to check this disturbing trend should he be presented with a High Court vacancy.
At the SCOTUSblog, Thomas Merrill comments that contrary to all of the apocalyptic rhetoric (one of my specialties), the decision sends ‘the right message’:
As to Kelo, I think the case sends just about the right message. The Court is not prepared to adopt a per se rule against takings for economic development. But the amber light is flashing. Stevens and Kennedy seem to say that careful planning and lots of community input are important in sustaining the use of eminent domain for economic development. Kennedy, in a manner analogous to his Veith concurrence last term, warns that he may come up with a theory in the future which would allow him to go the other way — so watch out! The Court is closely divided 5-4, which means another, more egregious example of condemn-and-retransfer might get struck down. So the message to state courts is: go ahead and use eminent domain for economic development, but please try to take property rights more seriously in the future. I think this is exactly the right message. it preserves federalism in this area, but tries to re-shape values and attitudes to be less casual about overuse of eminent domain, which can be a wrenching experience for people.
I still tend to think this was a pretty horrid decision, and the Instapundit has a link-rich round-up of reactions, including this piece in Tech Central Station by Prof. Bainbridge. More here from Malkin.
Final thoughts on Kennedy and the decision can be found at SOCAL Law Blog.
I lied. Rick Moran has a great round-up here.
I haven’t read (found) the actual decision or the dissent, so I reserve the right to revise and extend my remarks (backpedal) later; nevertheless …
It seems to me that the remedy, if one is needed or wanted, is to change the laws that apply to or bear upon eminent domain.
Eminent domain is rather incompatible with good old American ideas of liberty, yet it is a long-established — entrenched? — concept that is deeply embedded in statute and case law. If people are genuinely concerned about it, they might not wait until cases have to be pushed all the way up to SCOTUS, and the effects of decisions applied all the way back down to municipalities, before paying attention.
When laws are perfect, and application of law is flawless, you don’t need courts much. For the rest of the situations, you need courts. In the dominion of God and His law of the future, thanks to the benevolent protection of the GOP, we won’t have, or need, courts. People can just pray on these things.
But meanwhile, during this transition period of tribulation (you know, while the libruls and America haters still have some influence because God’s politicians have not had time to completely ruin — I mean, change — the application of law in this country), change the law, if the law is not to your liking.
This is the first time I’ve ever found myself in agreement with Justices Rehnquist and Thomas. I may lean left, but the idea of the state using its power to help enrich a private developer is very troubling.
Here are links to all four (Justice Stevens’s opinion, Justice Kennedy’s concurring opinion, Justice O’Connor’s dissenting opinion, Justice Thomas’s dissenting opinion.)
M. Scott Eiland
The problem is that both liberal and conservative judges tend to sign off on this sort of thing (the four Justice minority bloc in Kelo was rather a pleasant surprise, really)–to be sure of getting someone who would be inclined to stop this sort of crap, a candidate would have to have a pretty convincing paper trail of pro-libertarian decisions and/or speeches, which would cause the liberals and probably a lot of moderates in the Senate to go after them in the same way that Janice Rogers-Brown has been savaged.
Where’s the judicial activism when we need it?