I Guess 'Because You Made the Wrong Decision the First Time Around' Wouldn't Cut It


Explaining why the Supreme Court should rehear Kelo v. New London, constitutional scholar Douglas Kmiec offers an argument that I wish was a little more persuasive.

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  1. Congress already tried remanding a case back to the courts (Schiavo) and that didn’t work out the way they hoped.

  2. Although Kelo was wrongly decided, IMHO, there is no realistic “more persuasive” argument for reconsideration. State and federal trial courts rarely grant reconsideration of their orders and they face the threat of multiple layers of appellate review. How many (if any) motions for reconsideration has SCOTUS ever granted?

  3. Oh my god. A pre-law junior could defeat that argument.

    I like the part where he states that the Court should have assumed that the process of choosing the developer was corrupt, because the developer hadn’t been chosen yet.

  4. Actually, I bet the IJ could find a concurring justice to sign on for a rehearing. The majority decision had some fairly transparent language about “the issue before us” and “what we’ve been asked to decide,” that suggested to me that the liberal 4/5 of the majority saw some constitutional arguments that the IJ left on the table.

    Of course, since those arguments would likely involve arguing that a “due process” for redevelopment takings exists, or that economic status should be an area of concern under the Equal Protection doctrine, there’s no way the IJ is going to make those arguments.

  5. joe, you bring up an interesting point. Why do Supreme Court justices need the law told to them in the form of oral arguments? If there were indeed Constitutional arguments not raised by the IJ, are the justices not allowed/capable/aware of the ability/caring enough to use their own Constitutional knowledge above and beyond the points raised by the advocates?

  6. jf,

    I don’t know the answer, but I do know that the practice is not limited to the Supreme Court. For example, juries are not allowed to consider facts not offered into evidence – verdicts are overturned if they do, even if it is just looking up a word in the law in the dictionary.

  7. If there were indeed Constitutional arguments not raised by the IJ, are the justices not allowed/capable/aware of the ability/caring enough to use their own Constitutional knowledge above and beyond the points raised by the advocates?

    There is absolutely no reason in the world why judges can’t make their decisions based on arguments that neither party has brought up. There is even a latin word for it – sua sponte – meaning (roughly) on their own motion.

    There are some limits on this – judges aren’t supposed to recognize facts that haven’t been placed before them by the parties, for example, and can’t create entire claims or objections out of thin air.

    But, hey, if 5 SCOTUSoids say “even though IJ didn’t argue the 9th amendment, we think its the deciding factor in their favor” there is absolutely no one who can do anything about it.

  8. For the past couple of years I’ve been living extremely frugally, to save money to buy a house. At the rate I’m going, I should have enough for the old-fashioned twenty-percent-down-payment is less than a year. But between Kelo, and things like the “Couch Potatoes” Daily Brickbat (a town is making laws concerning what kind of furniture you can and cannot put on your front porch), and property taxes that are about half as much as apartment rent (over and above any mortgage payments), I’m forgetting what, exactly, is the point of “owning” property anyway?

  9. It just occurred to me: everything I’ve been taught about the benefits of home ownership is wrong.

    MYTH: Unlike an apartment, when you own your “own” home you know it’ll always be yours, as opposed to an apartment where the landlord could at any time choose to kick you out so he can build something else on the property.

    FACT: I live in Connecticut, birthplace of the “Kelo v. New London” debacle. And my own city, I’ve since learned, has abused a LOT of ED in the past few years, always involving confiscating a home or a small business, to turn over to a developer or big business.

    MYTH: When you buy a house, once you pay off the mortgage you’ll have a FREE place to live and a much easier budget, since you no longer have to set aside hundreds of dollars each month for housing.

    FACT: For the type of house I want to buy (which is not a mansion by any means), the money I’d have to pay right now in taxes each month would be about what I paid in rent each month when I moved to Connecticut 10 years ago. Granted I’ll have much nicer digs, but I’ll still have to scrape together a good chunk of money every month, for the rest of my life, in exchange for a place to stay.

    MYTH: When you own your own home you can make changes as you see fit, without having to get a landlord’s permission first.

    FACT: Towns are now going so far as to require permits if you so much as want to put up new internal WALLPAPER, let alone add on a room. Truth is, getting permission from my landlord to renovate my rented apartment would be EASIER than getting permission from the state to renovate my own house: instead of filling out forms in triplicate and paying a fee each time, all I’d have to do is call my landlord and say, “Hey, would you mind if I painted the walls a different color?” And he’d most likely say “go ahead, just don’t get paint on the floor.”

  10. Jennifer:

    Just wait. Joe will come along and tell you why all your “facts” are really good things and how America couldn’t have progressed without the state making you think that you own property.

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