Memo To Justice John Paul Stevens, the Kibbitzer: How About Critiquing Your Own Kelo Opinion?

Check out the New York Times story about retired Justice John Paul Stevens who, unlike most of his predecessors, is happy to provide commentary on his former colleagues’ work, in speeches and statements to the press. Adam Liptak, Justice Stevens Is Off the Bench but Not Out of Opinions, N.Y. Times, May 31, 2011, at p. A14).

If you have an interest in the doings of the Magnificent Nine you may take note of an interesting theme in Justice Stevens’ remarks. For example, stresses the Times, he is critical of the court’s 8 to 1 decision in Snyder v. Phelps (that’s the one that held it to be OK under the First Amendment for a bunch of ideological/religious wackos to disrupt servicemen’s funerals by picketing and displaying signs insulting the memory of the fallen soldiers to the great distress of their families). Justice Stevens agrees with Justice Alito’s dissent that “… the First Amendment does not transform solemn occasions like funerals into free-fire zones.” Stevens also dissented, while still on the court, from the 1989 decision holding flag burning to be protected by the First Amendment.

What’s interesting to us about these two positions is that they appear to provide an insight into Justice Stevens’ thinking. He appears to draw the line at literal-minded court decisions that take constitutional law principles to their limits and beyond, and cross the line into reductio ad absurdum territory.

What makes that interesting to us here in this blog on eminent domain is that Justice Stevens was himself guilty of that very sin in his infamous 5 to 4 majority opinion in Kelo v. New London. Putting aside the very substantial argument challenging the court’s transmogrification of the constitutional phrase “public use” into “public purpose,” and thereby telescoping the regulatory state police power into the acquisitory state power of eminent domain, isn’t there a point beyond  which such language-stretching breaks down? Specifically, is a merely prognosticated financial benefit to the community, that is hoped to come via a trickle-down process from the future prosperity of redevelopers and their upscale customers, a sufficient justification for tampering with an explicit constitutional “public use” requirement? Or is it only another bit of reductio ad absurdum in judicial thinking?

What makes this point particularly intriguing to us is that shortly after the Kelo decision came down, Justice Stevens gave a speech in Las Vegas to the Nevada Bar Association, in which he confessed that  Kelo was a decision on which the court may well have taken a “mulligan,” and that had it been up to him in the first instance (i.e., making the decision whether or not to condemn Susette Kelo’s home) he may have reached a different result for reasons of economic efficiency. See Judicial Predilections, 6 Nevada L. Jour. 1 (2005).

Well, if Justice Stevens has now slipped into the role of a court critic, wouldn’t it be a good idea to revisit this subject one more time, and tell us what he really thinks about the Kelo fiasco. It would sure be interesting to learn whether the disastrous failure of the Fort Trumbull redevelopment project in New London (as well as the failures of other prominent government takings, like Berman and Midkiff), has informed his thinking. Would he admit that the majority’s uncritical worship of the city’s redevelopment plans was unwarranted? Would he recognize the merit of the priciple (adopted by the court in other, non-condemnation cases) that where the government acts in its own self-interest — and hoping to increase its own tax cash flow would surely qualify as such — a stepped-up level of judicial scrutiny is warranted? Or would he still cling to his extremist Kelo view, in spite of the fact that reality has demonstrated that those supposedly thorough city plans to which he and the majority deferred turned out not to be worth the paper they were written on? To put it another way, would he admit that he and his colleagues on the majority got snookered by reality?

To get the full Times article click here.

Afterthought: In case you are not aware of it, the New London redevelopment plan that was in issue in the 2005 Kelo case turned out to be a complete failure. The subject property, a 91-acre tract of waterfront land taken from home owners in an unoffending lower middle class neighborhood, is still sitting empty, producing no tax revenues. That caper cost the Connecticut taxpayers at least $80 million, possibly twice as much. With nothing to show for it.

Your tax money at work.

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