Souter concedes that there could be truly bad faith condemnation of land—say, when the mayor, a Democrat, condemns Person A's land and gives it to Person B, also a Democrat. But Souter sees no evidence of bad faith in New London. They are legitimately attempting to revive a declining economy. O'Connor adds: "Do you really want the courts to be in the business of judging whether a hospital will be successful or a road well-constructed?"
Wesley Horton represents the city of New London, and even before his to-scale chart comes out, it's clear that his enthusiasm for this development knows no bounds. He's a hopper, as well as a pointer, and he tends to chuckle at his own jokes. But he makes the point that this condemnation is no different than any of the innumerable ones that were deemed constitutionally sound in the past.
Justice Antonin Scalia asks what difference it makes that New London is depressed. What if a city acknowledged that it wasn't doing badly, but just wanted to condemn land to attract new industry? He describes Horton's position as: "You can always take from A and give to B, so long as B is richer." And O'Connor offers this concrete example: What if there's a Motel 6 but the city thinks a Ritz-Carlton will generate more taxes? Is that OK?
Yes, says Horton.
"So you can always take from A and give to B if B pays more taxes?" asks Scalia.
"If they are significantly more taxes," says Horton
"But that will always happen. Unless it's a firehouse or a school," protests Kennedy.
Here is where O'Connor asks about the specific plans for the homes before the court, and Horton pulls out his Pareto-optimal town-planning schematic, and everyone on the bench briefly contemplates buying a new condo in Fort Trumbull, Conn.
Justice Stephen Breyer asks why the courts cannot just demand some "reasonableness" standard for proposed "public use" projects. Horton says that standard is too high. Breyer points out that this is a "specific constitutional provision designed to protect minorities from the actions of majorities," and maybe a higher standard is warranted.
"We're paying for it!" Horton exclaims, noting that no one is taking anything from these minorities.
"But you're taking it from someone who doesn't want to sell. She doesn't want your money," retorts Scalia.
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