Justice Stevens Has Second Thoughts About Kelo. No, Wait – He Doesn’t, But he Can’t Explain it Either

We wish Justice Stevens, the author of the Kelo majority opinion, would make up his mind. First, shortly after Kelo came down in 2005, he went to Las Vegas and delivered a speech to the Nevada Bar Association in which he clearly expressed his misgivings about his majority opinion, noting pointedly that there are some cases on which he wished the court could take a mulligan. For the benefit of non-golfers who may be reading this, “mulligan” means doing it over, as in repeating a stroke. The implication was clear. You can catch all that in the Nevada Law Journal wich published the text of his speech — Judicial Predilections, 6 Nev. L. Jour. 1 (2005).

Now, reacting to stinging criticism from his friends, he is digging in his heels and defending his handiwork as being compelled by precedent, which is the judicial equivalent of the “the-devil-made-me-do-it” defense.  We learn this from Online WSJ (Jes Bravin, Justice Stevens on His ‘Most Unpopular Opinion’, November 11, 2011) — a tip of our hat to the Volokh Conspiracy for bringing this to our attention and quoting the pertinent part:

“It’s the most unpopular opinion I ever wrote, no doubt about it,” Justice Stevens said in an interview. He said he empathized with Ms. Kelo, “but the legal issue would have been exactly the same if it had been a gas station or a pool hall” . . .

What a strange thing to say. His Lordship obviously does not understand the law of eminent domain. Why? Because at least Susette Kelo got paid for the taking of her home, whereas in Connecticut owners of a business like a pool hall or gas station, don’t get a nickel for the destruction of their business goodwill (which can be quite valuable) and other business losses when the land on which they are located is taken by eminent domain. So an uncompensated taking of such businesses would have been much worse morally than paying Susette for her iconic “little pink house.” Studies done during the heyday of redevelopment urban devastation (displacing hundreds of thousands of city dwellers per year) showed that some 80% of individually-owned, one-location businesses never reopened when their premises were taken by eminent domain.

And why pick “a gas station” or “pool hall” — both undesirable land uses? Why not pick a hospital? Like for example in the wretched Poletown case in Detroit, where the taking included the Sisters of Mercy Hospital, a major acute care hospital that had served the local community for years, only to be bulldozed to the ground in order to turn its site over to General Motors for a new Cadillac plant, at a cost to the public of $200 million, all to no effect — the promised 6000 job level of employment at the new plant never materialized, and in the long run GM went bankrupt and Detroit became the nation’s urban basket case anyway. Your faithful servant was one of the lawyers representing the Sisters and can attest to the abuse to which they were subjected — which is another story for another time, but which warrants mention.

But be that as it may, why was Justice Stevens making this unfortunate attempt to defend his indefensible handiwork after expressing justifiable doubts about its soundness? Because he got chewed out by his right-thinking friends, that’s why.

“I had people at a bridge game stop me and ask, ‘How could you have written that opinion? We thought you were a good judge, but we learned otherwise,” he said. “But you can’t explain the whole law of eminent domain to your bridge opponents.”

Oh, really? We can, Your Honor. First of all it wouldn’t be “the whole law of eminent domain” but only one narrow slice of it, to wit, what constitutes “public use” within the meaning of the Fifth Amendment. Let’s get that straight; it wouldn’t even cover the entire subject of right-to-take law. Most eminent domain cases in which the owners challenge the right to take involve topics other than “public use” — like attempted excess condemnation, issues of “more necessary public use” (where both condemnor and condemnee devote the subject land to public use), lacking or misused statutory authority, failure to follow required procedures, failure to make a statutorily-required prelitigation offer, or even lack of necessity in a few cases.

Being of a certain age, though not quite in the same league as Justice Stevens, we doubt whether we could still do it while standing on one leg, but it would be a breeze to do it standing  up during the time it takes to play a rubber of bridge. It’s not rocket science, you know, although by an odd coincidence your faithful servant happens to be a former rocket engineer, and he can attest to the fact that in a sense rocketry is easier than the law of eminent domain, because in it words have meaning and you can’t mold the meaning of a term and thereby the meaning of reality to suit your policy preference. The last time the rocket folks tried it, the Challenger shuttle blew up on liftoff.

So how about it, Your Honor? Your faithful servant will be glad to pop over to Florida and give your bridge opponents (and your partners too) the benefit — if that is what it is — of his nearly 50-year experience in practicing, teaching, writing and lecturing on the law and practices of eminent domain. You will find his credentials if you go to the upper right corner of this post and click on the word “About.”