An Apology from One of the Justices Who Decided the Kelo Case

We are on the road at the moment, but the word is out that one of the Connecticut Supreme Court Justices has expressed a sort of, kind of, left-handed apology to Susette Kelo for the court’s decision in her case. So reports Jeff Benedict, author of the book Little Pink House, which is all about the Kelo case. You can find the details in our fellow blogger Robert Thomas’ blog, inversecondemnation.com which we recommend highly. The title tells it all: Too Soon Old and Too Late Smart: A Jurist Offers His Kelo Mea Culpa, September 18, 2011. For Jeff Benedict’s story on this subject, published in the Hartford Courant go to www.courant.com.

We won’t go through the details again here since you can get them with a click of your mouse. Suffice it to say that the “apology” boiled down to an assertion that if he had known then what he knows now — i.e., that the Fort Trumbull redevelopment project would be a total failure (as it has become) he would have voted the other way, thus bringing about the opposite result because of the close court split. Maybe that is his Lordship’s way of assuaging his feeling of guilt, but we have great difficulty buying it.

First, on general principles, if your faithful servant knew then what he knows now, he’d be as rich as Warren Buffet.  But he didn’t and he isn’t. Or, if grandma had wheels, she’d be a trolley car.

To get legal, the Connecticut Supreme Court (following the U.S. Supreme Court’s lead) held that whether or not a redevelopment project fails, or even whether it can succeed, is irrelevant as a matter of law. So if the court meant what it said in Kelo, then the project’s failure would be just as irrelevant as its success. That’s what  the word “irrelevant” means, doesn’t it?

So it sounds to us like his Lordship is trying to assuage his guilt feelings. Understandably so, because the Kelo case turned out to be a disaster — moral, economic, doctrinal and civic — so it is understandable that judges who decided it would feel bad about their handiwork. More than probably any other case, Kelo drove a wedge between the people and the courts, and elevated mistrust of government to unprecedented heights. Slice it any way you want, but taking a perfectly unoffending, unblighted lower middle class neighborhood in order to raze it and put up upscale condos and shops for well-paid employees of the Phizer pharmaceuticals company, in the hope that this would produce a trickle down effect even after the tax breaks that Pfizer got, and after diverting incremental tax revenues to paying off the municipal bonds that had to be issued to pay for this caper, was no “public use.” Saying otherwise was and remains an Orwellian perversion of the English language because every privately created project of this type (condos and malls) would — mirabile dictu! — become a “public use” which it plainly is not.

Legal bottom line: If his Lordship had known back in 2004 that the Fort Trumbull redevelopment project would be a failure, that would have been just as irrelevant by the court’s lights as the belief that it would be a success. What all that demonstrates is not so much that he was wrong, but that the judge-made law is wrong.

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