Scalia was in town for a conference on judicial “takings” — the issue of whether and when the government can confiscate private property. Scalia predicted the court’s 2005 “Kelo” decision saying local governments can take take property from one owner to give to a developer will be reversed someday.
“I do not think that the Kelo opinion is long for this world,” Scalia said. “My court has, by my lights, made many mistakes of law during its distinguished two centuries of existence. But it has made very few mistakes of political judgment, of estimating how far ... it could stretch beyond the text of the constitution without provoking overwhelming public criticism and resistance. Dred Scott was one mistake of that sort. Roe v Wade was another ... And Kelo, I think, was a third.”
Scalia dissented in the notorious eminent domain case, so it’s no surprise to find him criticizing the majority's decision. But does that mean Kelo’s days are actually numbered? Keep in mind that the Supreme Court has had several choice opportunities to correct its Kelo mistake, most recently when property owner Nick Sprayregen asked the justices last year to put a stop to New York's use of eminent domain on behalf of Columbia University, which wanted to bulldoze Sprayregen's West Harlem businesses to make way for a new stretch of campus. It would have taken four votes for the Supreme Court to agree to hear Sprayregen’s appeal, but the final count came up short. Perhaps Scalia can do a better job of persuading three or more of his colleagues when the next eminent domain case reaches 1 First Street.