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June 23, 2005

When good judges go bad

Today the Supreme Court decided, by a 5-4 vote, that your city council can decide that it would rather have a Wal-Mart occupying the land that your home and the homes of your neighbors currently occupy because Wal-Mart will generate more tax revenue.  And if you don't want to sell, the city can "take" your land, and then give it to Wal-Mart to do with it what it pleases (of course, you will receive someone's version of "fair market value" for your trouble).  And there's not a thing you can do about it.  (The case is called Kelo v. City of New London.)

Here is the Court's description of the property at issue in the case:

Petitioner Susette Kelo has lived in the Fort Trumbull area since 1997. She has made extensive improvements to her house, which she prizes for its water view. Petitioner Wilhelmina Dery was born in her Fort Trumbull house in 1918 and has lived there her entire life. Her husband Charles (also a petitioner) has lived in the house since they married some 60 years ago.... There is no allegation that any of these properties is blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area.

And yet, the Court concludes, the city's determination that the cause of "economic development" would be served by transferring this land to different private owners - namely, Pfizer Corporation - was "rational," and "economic development" is a traditional function of government, so it's OK to force these people to sell their homes.

Excuse me, but WHAT COUNTRY ARE WE LIVING IN??  Justice O'Connor's dissenting opinion is excellent, and (to me) totally convincing.  Go read it - she explains why the Court's decision is wrong better than I could.  Money quote:

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.

Amen.  Scary stuff, but you know it's true.

Oh - the title of this post.  One of the saddest things about this case is that the five-member majority consists of Justices Stevens, Souter, Ginsburg, and Breyer - traditionally the "liberal" votes - along with Justice Kennedy.  Those four Justices are usually the ones we lefties expect to stand up for our side.  How horrifying that not one of them could see how wrong this decision is.

UPDATE: A commenter at Daily Kos has this totally hilarious take on the decision: "Ownership Society?  Nah, call it the OwnershiT society, because after this ruling, we don't own shit."  Interestingly, though there's some disagreement, I'd say the majority of the comments over at Kos (most of which are presumably written by liberals) are clearly against this decision.  And many of them are stunned to find themselves in agreement with the "conservative" Supreme Court Justices.  Labels like "liberal" and "conservative" are not particularly useful when it comes to jurisprudence, and we'd all be better off finding a different vocabulary to talk about judges.

Posted by David at 06:40 PM in Law and Lawyers | Permalink


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» Could it happen here? from Universal Hub

With the Supreme Court ruling it's OK for cities to hand private property over to developers in certain cases, Empirefalls [Read More]

Tracked on Jun 23, 2005 9:48:15 PM

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Justices, 5-4, Back Seizure of Property for Development. The central planning notion put forward by New London, Connecticut -- that it needs to assemble large tracts to encourage development -- is simply a lie. There is no basis to demonstrate that suc... [Read More]

Tracked on Jun 23, 2005 11:47:00 PM


While I frequently like redevelopment and infill projects to revitalize downtowns... taking private land for "better" private uses is not a tool that government should posess. This Supreme Court case just went wrong. [Read More]

Tracked on Jun 25, 2005 6:23:28 AM


I totally agree. Some liberal types seem to be worroed that this would only provide fuel for all of the regulatory takings right-wing types, although they lost the Lake Tahoe case.

An example of that thinking is Scott Lemieux of LG&M who posted over at Ezra Klein's blog on this topic. I actually think that using eminent domain for blighted areas is pretty sketchy too.

Schools, hospitals, roads--even reservoirs--but increased tax revenues. No thanks.

Posted by: Abby | Jun 23, 2005 10:17:15 PM

I too consider myself one of the liberals who is stunned that I'm in agreement with the conservative justices. The more interesting to me is what is going on in Zimbabwe. Apparently the government there is clearing out these squatter shacks throughout the cities in what is termed an operation to clean out "garbage". The problem is that they're basically leaving hundreds of thousands (if not, over a million) of people who are already destitute absolutely stranded without shelter. Major groups are calling it a human rights violation.

The relation is that the Zimbabwe government considers it a necessary practice to revitalize their economy and improve their society. And it's wrong. And now the United States also thinks it's ok to kick you out of your home against your will and to turn it over to economic interests. Once again, it's wrong. This is equally horrifying, and I have no idea what the justices are seeing in this.

Companies can now choose wherever they want to go because no government is going to turn away the tax revenue. So you own nothing. This country is going to hell in a handbasket unless we get something to turn it all around.

Posted by: Russell | Jun 24, 2005 12:43:16 AM

If you want to see the most concrete (no pun intended) example of this, look up Scollay Square, in Boston. It used to be a thriving, seedy part of town where you could see a burlesque show and buy nickel hot dogs. Poor, honest people worked their ass off to run their businesses and live their lives.

In the 60s the city tore it down and put up a gigantic city hall, and a vast wasteland of bricks and steps. It is as if the government built an altar to itself and buried the bones of the city underneath.

Posted by: Ed | Jun 24, 2005 7:53:52 AM

I, too, am surprised and dismayed but what seems to be a justly unpopular ruling. But why is everyone convinced it's going to lead to Wal-Mart taking over? The places the chain has had a hard time expanding into are the municipalities where the local governments prevent them from building. There can't be that many cases where the company is relying on eminent domain to get its land - are there?

If anything, the class dynamic will tend to work in reverse, with gentrifying development projects (imagine Providence Place Mall, only built over existing residential and business property) running roughshod over poorer people's lives and livelihood.

Also, am I reading the ruling wrong, or would local governments not have to demonstrate a bona fide justification of economic development and public interest, other than tax revenues from a single company?

Posted by: Chris | Jun 24, 2005 7:56:10 AM

If you want to see the most concrete (no pun intended) example of this, look up Scollay Square, in Boston.

Agreed. But the government had the power of eminent domain already (including the right to erect lifeless brick plazas and brutalist architecture where thriving neighborhoods once were). What's changed is that - in an age where government doesn't actually like to finance this kind of grand project very much - it can perform eminent domain on behalf of private developers who will do the razing and erecting. We'll get more Scollay Squares, just in pink granite and postmodern design. After all, the private developers will have less accountability to a political process.

Posted by: Chris | Jun 24, 2005 8:02:38 AM

So the SCOTUS said that private-eminent domain scenarios weren't entirely against the rules. That doesn't mean that any given state can't make them against the rules anyway.

In other words, if MA decides to pass legislation (or even ammend the constitution) to make this kind of land-grab illegal, that's still within the SCOTUS' decision.

So, let's do it. Let's codify our disgust with allowing corporations to bully homeowners off their land.

Posted by: stomv | Jun 24, 2005 8:07:07 AM

stomv: unfortunately, MA is particularly permissive with respect to eminent domain, so it will take a major rewrite of existing MA law to reach the result you urge. I'm for it (obviously), but I have no idea whether it's politically feasible. There seems to be a lot of outrage festering from both left and right about this decision, and it will be interesting to see whether it retains any momentum.

Posted by: David | Jun 24, 2005 9:10:17 AM

This isn't about Walmart or Phizer.

This is about the government making value judgements in regards to the personal property of its citizens. On its face it's outrageous, when one adds into the mix the sometimes dubious motivations of local governments and outside money that influences those involved in government, it is a truly appalling situation.

"There might be legal precedent! Of course, Landsnatching . . . land, land, Land, see Snatch. Ah, Hailie vs. United Sates. Hailie: 7, United States: nothing. You see, it can be done!"
-Hedley Lamarr

Posted by: Erik Schwartz | Jun 24, 2005 9:20:14 AM

1. The state legislators will have power to allow or disallow this type of taking.

2. In 1950s Boston's West End was taken by emminent domain to make way for Charles River Park. Tens of thousands were displaced. The developer who made all the money was the not yet rich but politically influential Jerome Rappaport. Father of that state republican rich boy creep, Jim Rappaport.

Posted by: The troll | Jun 24, 2005 9:39:13 AM

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