June 23, 2005
I'LL BE ON HUGH HEWITT in a few minutes, talking about the Kelo case. And there are, by the way, a lot of interesting posts over at SCOTUSblog. [LATER: Audio here. Transcript here.]
UPDATE: Charles Fried:
The court might have reined in local governments from bulldozing private property rights by at least demanding some heightened legal inquiry into the government's claim that its action will bring about a public benefit. But Justice John Paul Stevens, writing the majority opinion for the court, would have none of that: While intoning the formula that a pure grab to favor cronies of the state would not be tolerated, he refused to consider even the mildest boost to judicial scrutiny. Justice Anthony Kennedy seemed to see this point. In a concurrence, he expressed hope that the court would not be powerless to curb abuses of government power—but then unaccountably he joined Stevens' opinion holding that the state can do no wrong. . . .
Over the last 15 years or so—in decisions like Lucas v. South Carolina Coastal Council, Nollan v. California Coastal Commission, Dolan v. City of Tigard, and Pallazolo v. Rhode Island—the court has shown some backbone in protecting property rights from the insatiable appetite of the regulatory state. Unlike some other rights that get the fullest measure of the court's protection, these property rights are explicitly mentioned in the Constitution's Fifth Amendment. Kelo, however, is the latest example of the court's faltering will in this and several other areas. . . . The Rehnquist Court has done its greatest work in reversing the excesses of the years of Justice William Brennan's ascendancy. But in its recent decisions in the areas of federalism, religion, affirmative action, the death penalty, and now property rights, the court seems to be losing its grip.
I'm already calling it the "Emily Litella court" in an in-progress article on Raich.
ANOTHER UPDATE: Reader George Zachar says I have the wrong allusion -- it's really the "Andy Warhol court":
This court won't you let you use something you've grown on your land ON your land because somehow that's "interstate commerce".
Now, a govt planner's fancy report is deemed adequate reason to force a property owner to sell out.
Under this court, the law has become what Andy Warhol said art is: What you can get away with.
MORE: A potent tool for shutting down unpopular businesses, like abortion clinics, gun ranges, nude bars, unpopular religous congregations, hostile newspapers, etc.?
Wal-Marts? ("We think this hemp-based boutique will generate more tax revenues. And we commissioned a report that says so!")
And Ann Althouse is savaging Justice Kennedy for falling into "the most obvious spelling pitfall in all of law." That really hurts . . . .