Methinks Justice Stevens Protesteth Too Much. Way Too Much.

It’s official. Justice Stevens  has done it again. While at first he hinted at the idea that the Kelo case was one of Supreme Court’s achievements that perhaps warranted a mulligan, he now concedes that as far as the American populace is concerned, it’s a lot worse than that. In his latest (second? third?) article on the Kelo case, he concedes that Kelo is viewed as the most widely despised case decided by the Supreme Court in modern times. Kelo, Popularity and Substantive Due Process, 63 Ala. L. Rev. 941 (2012).

So it seems proper to suppose that given Justice Stevens’ concession, he might have given his handiwork some thought in an effort to discern whether upon reflection, even by his lights, Kelo may have fallen short of judicial perfection by stretchng “the law” a bit too far. Right? Wrong! Instead of contemplating the possibility that he might have been, if not wrong, then at least not entirely right either, he doubles down on his Kelo effusions and purports to tell us in three easy steps why he is right and everybody else is wrong.

We could engage here in a lawyerly point by point debate, but we won’t; we have done that already. See 33 Pepperdine L. Rev. 201 and 38 Urban Lawyer 201. This blog deals with the law of eminent domain, all right, but it also deals with its other aspects, like the injustice of it (which is evidenly of no interest to Justice Stevens), its impact on society and, in this case, the common sense or more accurately, the lack thereof.

We hold to the quaint  proposition that law should rest on a foundation of common sense, and that even when it is right it should not be stretched to a reductio ad absurdum point — i.e., “public” is not “private.” Otherwise, when extreme reliance on precedent alone is what motivates judicial holdings, society finds itself in a state that Justice Holmes aptly characterized as “revolting,” and more important, governed by “law” that not only commands no respect, but is despised by the vast majority of the people. That isn’t good, folks. It isn’t even bad. In a democratic society, that is a self-destructive form of playing with fire.

Some time ago, we came across the line that the hallmark of good law is that even the losing party should be able to explain why he lost  — he may not like the result, but he should be able to see why the judges ruled as they did. Try that with the Kelo majority opinion; go to some public gathering and try defending its holding and see what happens. Indeed, Justice Stevens tells us that he is frequently approached by friends and strangers alike, who take him to task for his Kelo ruling.

What you get from Justice Stevens’ latest article is not an explanation of why he ruled as he did, but a repeated asserion  that “the devil made me do it,” the devil in this case being unyielding precedent. But if “the law” was as clear and firm as Justice Stevens would have his readers believe, why woud SCOTUS take the case and consider it on the merits in the first place, only to affirm it? Were his four dissentingcolleagues irrational? Not really. Whether you agree with their doctrinal bottom line or not, the dissents of Justices O’Connor and Thomas (and the votes of two more of their colleagues rejecting Justice Stevens’ position) were certainly not frivolous. Thus, by asserting that “public” means “private,” and “use” m eans “purpose,” and resorting to repetition as the sole basis for his ruling, Justice Stevens has acted out W. H. Auden’s poem that goes:

“Law, said the judge, as he looked down his nose, speaking clearly and quite severely. Law, as, I told you before; law, but let me explain it once more, law is the law.”

Thus, Justice Stevens’ point is that that Kelo is only an application of same ol’, same ol’ SCOTUS holdings in Berman and Midkiff. But it ain’t so. Berman justified the use of eminent domain and the transfer of the taken land to private parties, in order to clear slums on an area-wide basis, which the private market could not do, and which were not involved in Kelo. In spite of Justice Stevens’ effort to ring Berman’s bell by trying to make something of New London’s declining condition, the Kelo condemnation was NOT based on laws authorizing redevelopment of “blighted” urban land, but rather a candid municipal effort to improve its cash flow — which was rather strange because the Fitch bond rating service gave New London’s general obligation bonds a solid, investment grade AA- rating  (which, by the way, is higher than California’s). Thus New London’s counsel brazenly asserted in oral argument that by his lights, should a municipality decide to take and raze an unoffening Motel 6 in order to replace it with a privately-owned five-star luxury hotel, that would be a “public use.” Justice Stevens evidently agrees, but there is nothing in either Berman or Midkiff that can be tortured into reaching such a bizarre conclusion.

Justice Stevens’ next precedent that supposedly forced him to rule as he did, was Hawaii Housing Authority v. Midkiff which was said to justify the use of eminent domain to correct a malfuctioning housing market, and eliminate a legislatively posited (but economically nonexistent) local land “oligopoly.” But as astutely pointed out by Judge Cecil Poole while Midkiff was in the Court of Appeals, that was not merely wrong — it was impossible because the means prescribed by the legislation in question were antithetical to the results sought to be achieved by it. Replacing limited duration leaseholds with freehold estate titles was certain to raise, not lower, housing prices, and that is exacly what it did.  The law in question was thus irrational. The proof of the pudding came shortly after the Midkiff decision, when home prices on Oahu doubled within a few years, and instead of improving the lot of Honolulu home seekers, made it worse, as foreign (mostly Japanese)  investors and speculators prospered beyond the dreams of avarice. See 31 U. Haw. Law Rev. at 429-433, notes 30-34.

More important, Midkiff’s rationale was to correct a “malfunctioning” market for the benefit of lessees who could not buy homes, not to displace unoffending lower middle-class homeowners in order to build a spiffy, upscale neighborhood for the benefit of well-paid professional employees of the nearby Pfizer pharmaceutical company.

Nowhere in his writings does Justice Stevens defend the precedents he relies on in doctrinal terms. Instead, he  repeats, in the vein of  W.H. Auden’s judge, that “the law is the law” and that he was only following its precedential orders. But that is not the  point, certainly not at the Supreme Court level. The question is whether the application of “the law” to the facts before the court makes sense. And in Kelo it did not. Most people understand this. Justice Stevens evidently does not.