A Supreme Court Conversation

Walter Dellinger is a professor of law at Duke University and a partner in the law firm of O'Melveny & Myers. Charles Fried is a professor of law at Harvard University. He was U.S. solicitor general from 1985 to 1989 and has been a justice of the Massachusetts Supreme Judicial Court. Dahlia Lithwick is a Slate senior editor. Tim Wu is an associate professor at University of Virginia Law School.

Who are these people?

For the last three years, Dahlia Lithwick and Walter Dellinger have weighed in together about the major cases that come down at the end of the Supreme Court term. This year we add Charles Fried and Tim Wu to the mix.

It looks to me as if Walter and I agree on Kelo—not without overturning several decades of precedent could the court have adopted a requirement that the government can only take property (paying just compensation) if it is actually going to turn the property over to the public (as with a school or park). And anyway, what if after some years the government concludes it no longer needs the property? Can it not sell, or must it give the property back to its original owner, who must then refund his just compensation?

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Walter also agrees that the danger is cronyism and that something a bit more robust than Justice Stevens' if-they-say-it's-public-it's-public standard of review is in order. After all, the court is being asked to enforce a constitutional right not to have your property taken except for a public use. That's more than just asking the court to enforce good policy.

Incidentally, the government may almost always be able to get its hands on the property without using compulsion—by buying it like anyone else would. True, when the government takes by eminent domain, it pays "fair market value." But when I decide to sell you my home, I don't sell for what a court says is fair value, but for what I can get for it and what you will pay.

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