Scalia the Prophet?

We just came across the following quotation of Justice Antonin Scalia, from a speech he just gave in Hawai’i.  Click on

“U.S. Supreme Court Justice Antonin Scalia delivered a mixed forecast to University of Hawaii law students yesterday.”

“[In pertinent part, Scalia] said he has ‘no doubt’ the court will eventually overturn a 2005 ruling that let the City of New London take Susette Kelo’s property using eminent domain and transfer it to a private corporation because the promised economic development constituted a public use.

“As it turned out, the development never happened and the jobs never came, which Scalia called ‘poetic justice.’ ”

“ ‘Kelo will not survive,’ he said of the court’s 5-4 decision on the case in which he dissented. ‘I think the court was surprised by the reaction nationwide.’ ”

Nice going, Your Honor! Now, if you can only persuade some of your colleagues to embrace that sentiment and act on it, the state of the law, the health of the Constitution, and of the country will be enhanced.

On the other hand, we are mindful that in the wretched San Remo Hotel case, four Justices expressed the view that the equally wretched Williamson County case (that created a class of American legal pariahs who ostensibly for reasons of “ripeness”  are barred from ever having the constitutional violation of their property rights reviewed in federal court, or even under federal law in state court), should be overruled or at least reconsidered. But nothing of the sort happened, showing once again that talk is cheap.

On a related subject, about the time when the Hawai’i Housing Authority v. Midkiff case came down, Justice Blackmun who was then visiting Hawai’i, was so concerned about the public’s reaction to the court endorsing a mass condemnation of private titles to land from their owner in order to convey them to other, better politically connected private individuals, that he wrote a letter to Justice Sandra Day O’Connor (the author of the Midkiff opinion), asking her to hold its filing for a few days, so he could get back to the Mainland safely. She agreed. You can see both their letters in Justice Blackmun’s papers at the Library of Congress. Of course, as you may recall if you’re old enough, there was no great public reaction to Midkiff (caused in large part by press misrepresentations conveying, the false idea that the Midkiff case approved mass condemnation of land titles  for the benefit of nonexistent “sharecropper farmers,” whereas the beneficiaries of those mass takings were wealthy Kahala suburbanites and eventually, Japanese land speculators). Thus was the merit of the words of the Good Book demonstrated again, that the wicked flee when no man pursueth.

And oh, yes. Instead bringing about a lowering of Hawai’i’s cost of housing prophesied by the Midkiff legislation and Justice O’Connor’s opinion, housing prices in Hawai’i skyrocketed, doubling within a few years, and making Japanese home buyers and speculators wealthy in the process.* So much for using eminent domain to rectify a “malfunctioning” real estate market.


*     If you don’t believe us, go to Nexis and check out press reports of these events (from around 1986) using the phrase “Genshiro Kawamoto” as your search term. Good luck!