We perused Jeffrey Toobin’s new book, THE NINE: Inside the Secret World of the Supreme Court (Doubleday 2007), and took a look at his depiction of Kelo v. New London, appearing at 306-308. Guess what? According to Toobin, at the time of oral argument Kelo “drew relatively little attention” and it “hardly seemed like the stuff of high drama.” Really? But if that was so why did the Court grant certiorari in such a no-big-deal case only to affirm the lower court? More important, why did the Court split 5 to 4 in one of the most contentious judicial disagreements in history? Do you suppose Toobin could be wrong on that one? He could and he is.
In fact, the Kelo argument attracted a great deal of attention, coming as it did on the heels of a revived interest by the state supreme courts in abuses of the “public use” constitutional limitation in takings of private property for private gain in redevelopment cases. Kelo was one of the best attended U.S. Supreme Court oral arguments. We are told by eyewitnesses that the line in front of the Supreme Court building started forming the day before and by the morning of argument extended past the Library of Congress to the end of the block. Tickets were in such short supply that even some of the Kelo plaintiffs had problems getting in. Your faithful servant had the same problem, and even though representing one of the amici curiae in the case, had to make special arrangements with the Court’s Marshal, only to be laid low by a health problem that put the kibosh on his trip to Washington. Moreover, at the end of the Kelo argument a mob of spectators stood up and left the courtroom. It seems to us that even if you were from Mars, taking all that in might have suggested that this was no ordinary case.
So how does Toobin explain the country’s vigorous reaction to this supposedly ho-hum controversy? It was the doing of “the conservative movement,” that’s how. It was the likes of Tom DeLay and John Cornyn, and their ilk, says Toobin, that stirred up trouble after the Kelo opinion came down. What utter nonsense! Remarkably, Toobin fails to mention that the likes of the ACLU and the NAACP had filed amicus curiae briefs solidly on Suzette Kelo’s side. Some conservatives.
Putting aside Toobin’s absurd depiction of reality, he also reveals his ignorance of the basics of eminent domain law by stating that Kelo was no big deal because the Court found “previously that government could use eminent domain powers to transfer land to private parties – to railroads, for example.” What he does not seem to understand is that the Constitution only requires that the use be public, not the user. Private individuals and entities may freely wield the power of eminent domain for legislatively specified purposes. That includes not only highly regulated railroads, telephone companies and public utilities (which dedicate their facilities to public use and whose services may be used by all members of the public) but extends also to ordinary citizens who want to condemn an access road or a utility easement to their landlocked land (see e.g., Calif. Civil Code § 1001, Linggi v. Garovotti, 286 P.2d 15 (Cal. 1955)). We hope it won’t be a shock to Mr. Toobin to learn that he too possesses the power of eminent domain, provided he exercises it for legislatively specified public uses, and that his status as a private individual has nothing to do with that.
We also note Toobin’s report that responding to the tidal wave of public anger that followed the Kelo decision, Justice Breyer “despaired at the drubbing the Court was taking” and “took every opportunity to point out that the [Kelo] decision did not order any local government to buy land but only permitted the practice under limited circumstances.” Though we disagree with Justice Breyer’s decision, we hold him in high regard as a conspicuously intelligent individual and we have trouble believing Toobin that Justice Breyer offered so silly a justification. The Supreme Court certainly did not order Louisiana to institute Jim Crow laws in Plessy v. Ferguson, nor did it order the U.S. Army to imprison innocent Japanese-Americans in World War II when it decided the infamous Korematsu case. So what? The Court’s imprimatur on these shameful and plainly unconstitutional government acts was plenty bad enough. Even though it was the government litigants rather than the Court that were the actors in these outrages, that doesn’t change the fact that the Court validated and de facto endorsed them. Ditto in Kelo.
Finally, we cannot let Toobin get away with asserting that in the Kelo case, New London set out “to buy” Suzette Kelo’s land. Wrong. It was not a purchase – it was a condemnation, a forceful seizure of her home. If Toobin does not understand the difference between these two modes of government actions – purchase and seizure — he probably doesn’t understand the difference between seduction and rape either.