A Supreme Court Conversation
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.
Dear Walter and Charles:
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StumbleUponSo wonderful to have both of you at the table this year. Welcome.
My thoughts on Kelo echo much of what you've both said: In general, I worry when a majority opinion offers a litany of "it's not as if the government were doing [insert here unspeakably and undeniably corrupt act] …" as its most vigorous justification. Like you—and all the headline writers—I am seriously worried about pretextual seizures and subsequent transfers to McAmerica. That's why I hardly find Justice Stevens' "but the city had a plan" analysis reassuring. So the city had a plan. Who doesn't have a plan?
It's not enough for the majority to assert that this particular transfer was not the product of corruption, which seems to be the nub of Stevens' reasoning. Justice Kennedy does a better job of addressing the cronyism issue—as you note, Walter—but the notion that courts should now start taking allegations of pretextual transfers Awfully Seriously does not seem to have assuaged the fears of the political right. It's hard to blame them.
It is noteworthy that Stevens finds the authority for New London's seizure in a Connecticut statute authorizing eminent domain for economic development. This is not, he is saying, merely deference to a local government, but to the state as well. If you don't want the helicopters, shivering mothers et al., as painted by Walter, move to a state that's not so generous with your private property. Justice O'Connor—in her dissent—finds the majority's deference to be "an abdication of our responsibility." But where O'Connor's bright-line test for deference-versus-abdication lies may well be one of the great mysteries of the millennium.
In the end, I agree that the bright-line rule demanded by the property owners here would be unworkable, for all the reasons you both offer. This seems like the only resolution possible, even though the only folks who are truly happy with it are the good people at Pfizer and assorted city councilors.
Like you both, and much of America, I am on tenterhooks awaiting the Ten Commandments decision, scheduled to come down from the mountaintop on Monday. If Chief Justice Rehnquist could arrange to have a thick cloud and lightning bolts hovering over the court that day, you know he'd do it.
Dahlia
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