THE MEDIOCRITIES IN BLACK ROBES
” Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random,” O’Connor wrote. “The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”
– Justice Sandra Day O’Conner, in dissent
If after thirty years of trying to tilt the Supreme Court of the United States to the right and toward a philosophy of judicial restraint the best outcome we get is this morally obtuse and defiantly Orwellian decision by the textual-phobic moderate Justices, it is time for the GOP to throw in the towel. We need a a different strategy. Some other views on Kelo:
“On thinking more about this, there are two things I find even worse than the thought that our Constitution as written is meaningless: the Court just handed city officials everywhere the ultimate fundraising tool, because the opportunity for corruption inherent in city officials selling your property for campaign cash is unlimited; and we’ve tried in the West a system where the wealthy can simply expropriate land at need, reducing the non-wealthy to indentured tenants in fact if not in word – it’s called feudalism, and it didn’t work out too well, all things considered.”
Todd Zywicki at the Volokh Conspiracy:
“New York Times Hypothesis:
Awhile back, around the time of Lawrence and Grutter in particular, the hypothesis was floated–mainly in jest, I assume–that the best predictor of Surpreme Court outcomes in many socially and politically controversial cases was the conventional wisdom of America’s political and legal elite. And that this consensus could be captured in an operative variable as being the expressed position of the New York Times Editorial Board (perhaps the Washington Post Editorial Board as well).
The Court’s ruling in Kelo got me thinking about this hypothesis again, and so I went back and looked at the New York Times Editorials in three recent cases that came to mind as perhaps the most obvious tests of the hypothesis–Kelo, Raich, and Granholm. Sure enough, traditional legal variables seem to do fairly poorly in predicting the results in those cases, as many have noted. The composition of the majorities and minorities are all over the place with little consistency.”
But one variable does hit the mark three out of three times–in each case, the Supreme Court ruling met with the approval of the New York Times Editorial Page. Moreover, Kennedy–who has typically been characterized by critics as being the most susceptible to being swayed by elite opinion–voted with the Times, I mean the majority, in each of the three cases (by my calculation, he was the only one who did so). (Update: As the Comments point out, the liberals Souter, Ginsburg, and Breyer consistently were in the majority in these cases, it was the others that switched around.) “
“Unfortunately, the requirement to pay fair market value is a grossly inadequate safeguard on government power for two reasons. First, it fails to take into account the subjective valuations placed on the New London property by people whose families have lived on the land, in at least one case, for a 100 years. In other words, the government now will be able to seize land at a price considerably below the reservation price of the owners. Indeed, as Will Collier explained:
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