Kelo — Once More With Feeling


We just ran across a law review article (a tip of our hat to George Mason lawprof Ilya Somin) that analyzes the wretched Kelo case again — this time giving proper emphasis to the dissent of Justice Thomas whose deserving views have been overshadowed among members of the commentariat by the more forceful dissent of Justice O’Connor. So if you are still interested in Kelo — and who with an ounce of mavenhood in these matters isn’t? — we recommend you read Carol Necole Rose, Justice Thomas’s Kelo Dissent: The Perilous and Political Nature of the Public Purpose, 23 Geo. Mason L. Rev. 297 (2016). A good read, that. It tells us much about the   factual background of this controversial case, even if it fails to give proper emphasis to the fiscal disaster that redevelopment project turned out to be.

Our kudos to Professor Rose for this article and for choosing to include in her conclusion a quote of Justice Scalia from another case, that captures the essence of Kelo nicely.

“As Justice Scalia once said, some issues ‘come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.’ And the same is true of Kelo — the wolf comes as a wolf, and it comes as a wolf to prey on the most vulnerable and least politically powerful groups.” (Citations omitted).