Justice Stevens Is at It Again

Here comes another lengthy defense of his Kelo handiwork by Justice John Paul Stevens (for our earlier comments on this subject go to www.gideonstrumpet.info/?p=2221 ). The latest one is  in the form of a lecture (the 2011 Albritton Lecture at the University of Alabama Law School, on November 16, 2011, that we are told has been posted on the Court’s website).

To put it politely, Justice Stevens must be really scalded by the persistence and vigor of the adverse (and ongoing) public reaction to his Kelo majority opinion, because this time he tries to rehabilitate himself with a lengthy 17-page, single-spaced opus, rearguing the whole  shebang. It will be worth your while to read it.

What it boils down substantively is (a) his concession that taking property from A and giving it to B would violate the Fifth Amendment’s “Public Use” clause, but (b) taking unoffending property from A, C, D, E., F, etc. and giving it to B (the redeveloper) for the latter’s profit (some of which, according to the say-so of fallible municipal prognosticators will hopefully trickle down to the community) is constitutionally hunky dory. Dress it up with lawyer talk all you want, but that is what it boils down to. All this effort on Justice Stevens’ part is unavailing but understandable. It must be unpleasant, to put it with restraint, to end one’s career on the Supreme Court with strangers approaching you and asking “How could you write that opinion?” How indeed?

We rise above temptation to respond to Justice Stevens’ specific arguments, because this is not a law review. Besides, even on his premise, he ignores the fact that there is such a thing as a reductio ad absurdum argument whereby even sound arguments can be carried too far, and if nothing else, his Kelo opinion strays into that territory, because the legal doctrine he espouses has no limits — if the condemning agency makes “findings” no matter how inept in concept, disastrous in application, and contradicted by reality, by his lights they become “well-nigh conclusive.” To see how far this sort of thing can actually go, see 40 Loyola L. A. L. Rev. at 1080, n. 68.

If you take a peek at Professor Fred Rodell’s famous law review article, in which he acerbically criticized some judicial opinion (48 Va. L. Rev. at 280 (1962)), you’ll get the idea of what is wrong with Justice Stevens’ analysis. Besides, we have addressed it in 33 Pepperdine L. Rev. 335, and 38 Urban Lawyer 201. Check ’em out and judge foryourself.

And so, all that Justice Stevenes has so far accomplished with his post-Kelo arguments that purport to rely on precedent, is to provide a perfect example of what Justice Cardozo had in mind when he observed that

“Judges march at times to pitilesss conclusions under the prod of a remorseless logic which is supposed to leave them no alternative. They deplore the sacrificial rite. They perform it, none the less, with averted gaze convinced as they plunge the knife that they obey the bidding of their office. The victim is offered up to the gods of jurisprudence on the altar of regularity . . .I suspect that many of these sacrifices would have been discovered to be needless if a sounder analysis of the growth of the law, a deeper and truer comprehension of its methods, had opened the priestly ears to the call of other voices.” Benjamin N. Cardozo, The Growth of the Law.

And to go from the sublime to the earthy, there is also an old, old saw according to which when enough people tell you you’re drunk, it may be a good idea to sleep it off instead of arguing with them. Besides, this country was founded on the idea that the government derives its just powers from the consent of the governed, and the governed overwhelmingly think that Kelo sucks. True enough, that in itself is not enough to justify judicial disregard of a statutory or constitutional term that expressly allows or forbids some modes of government action. But transmogrification of the plain English term “public use” into public “purpose,” “benefit,” “advantage,” or “welfare”  — terms that are nowhere to be found in the Public Use Clause of the Fifth Amendment — smacks more of George Orwell’s dark vision of the future that of American constitutional law, and leaves one puzzled as to why the Supreme Court would thus resort to such stretching of plain English words, and thereby enlist itself in some sort of doctrinal jihad against private property rights.

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