Property Rights

Filling the Stevens Seat

Justice John Paul Stevens was no friend to economic liberty. Will Elena Kagan be any better?


In his statement announcing the selection of Solicitor General Elena Kagan to replace Justice John Paul Stevens on the Supreme Court, President Barack Obama praised Stevens for his "mastery of the letter of the law" and his "keen understanding of its impact on people's lives." Elena Kagan, Obama assured the country, will carry on Stevens' legacy.

Let's hope not. In addition to his spotty record on free speech and misguided dissent in the landmark gun rights case District of Columbia v. Heller (2008), Stevens' approach to economic liberty was marked by a callous disregard for the law's "impact on people's lives." If the Senate Judiciary Committee is serious about determining Kagan's fitness to hold Stevens' old seat, the senators should start by asking her about her predecessor's repeated hostility to the judicial protection of economic rights. Here are two places to begin.

First, there's Stevens' majority opinion in Kelo v. City of New London (2005), where he upheld New London, Connecticut's controversial use of eminent domain to seize property from one private party and hand it over to another in order to widen the tax base. As Justice Sandra Day O'Connor observed presciently in her dissent, "all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded—i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public." And let's not forget why the government targeted that particular neighborhood for condemnation: The Pfizer pharmaceutical corporation built a new research and development center on the adjacent land and New London wanted to build a fancy hotel, apartment buildings, and office towers to complement the corporate facility. Perhaps Kagan will explain to the Judiciary Committee whether she agrees with Stevens' judgment.

Then there's Stevens' majority opinion in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002). At issue was a series of rolling moratoriums placed on new construction in Nevada's Lake Tahoe Basin. Those restrictions stripped property owners of all economically viable use of their land without providing compensation—a violation of the Fifth Amendment's Takings Clause, which commands, "private property [shall not] be taken for public use without just compensation."

According to Stevens, however, this nullification of property rights did not require compensation since "the property will recover value as soon as the prohibition is lifted." Yet as the legal scholars Robert Levy and William Mellor observed, "Tahoe-Sierra gives legislatures virtually free rein to deprive property of its entire value for an unlimited amount of time without compensation, provided they style each successive deprivation as 'temporary' in nature." Surely someone on the Senate Judiciary Committee would like to know Kagan's views on that?

These are not just academic questions. Only yesterday, New York's highest court upheld the state's controversial use of eminent domain on behalf of Columbia University—a case that featured overwhelming evidence of state officials colluding with the university in order to create the blighted conditions that would allow an eminent domain taking to proceed. Earlier in the week, meanwhile, the federal 9th Circuit Court of Appeals heard arguments in a Takings Clause case that centered on the constitutionality of a California rent control ordinance. Justice Stevens may not have noticed it during his long tenure, but cases such as these have a huge "impact on people's lives."

So what should happen at Kagan's hearings next week? In 1995, Kagan herself criticized the judicial confirmation process as a "hollow charade" and "ritual dance." Senators should ask tough questions about specific issues and nominees should provide substantive answers, Kagan argued, and those questions would naturally focus on "the votes she would cast, the perspective she would add (or augment), and the direction in which she would move the court."

We know perfectly well what Justice Stevens thought about the Court's duty to protect property rights and economic liberty. It's time for the Judiciary Committee to ask, and for Kagan to answer, whether she will follow in his footsteps.

Damon W. Root is an associate editor at Reason magazine.

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  1. Neither Team Red nor Team Blue is going to nominate a justice who respects property rights, so you might as well save your breath.

    1. And for those who think team blue’s gonna take a big hit in November, you underestimate team red’s ability to snatch defeat from hands of victory.…

  2. she won’t answer, and yes she will follow in his footsteps.

    there, now no one has to waste time with the hearing.

    you’re welcome.

    1. Indeed, you’re absolutely correct. Unnecessary article actually, but maybe worthwhile for the younger of the gang. Not yet a jaded old fart like me.
      Oh, and Kagan called this a charade? Well of course. That was then, this is now. She will welcome the charade and dance away — already has been doing that recently. Just listen to the mumbo-jumbo comments she’s made since the nomination.
      Her world’s changed and she’s becoming one of the nine.

  3. Damon Root on Property Rights and the Elena Kagan Hearings

    Root, eh? Associate Editor? Watch your step, Citizen.

  4. It’s time for the Judiciary Committee to ask, and for Kagan to answer, whether she will follow in his footsteps.

    Damom, don’t you know how the SCOTUS confirmation process works?

    In a break from preening for the cameras someone will ask, Kagan will refuse to answer, then she will be confirmed.

  5. She looks like a troll. About to be eaten by a clown. While she adoring ogles her heart throb.

  6. “Tahoe-Sierra gives legislatures virtually free rein to deprive property of its entire value for an unlimited amount of time without compensation, provided they style each successive deprivation as ‘temporary’ in nature.”

    First I’ve heard of that one. Why even bother with the charade in such a case? Just say “fuck you” to the plaintiffs who had their stuff taken and call it a day. At least it wouldn’t be insulting anyone’s intelligence.

  7. Property rights are soooo overrated.

    AND racist.

    Don’t you care about the children?

    1. I’d so let you fuck me in the ass, chad.

      1. Stand in line, capitalist bitch.

  8. “It’s a great moment. I’m proud to have been here. No one will know until Kagan is actually in place how she works. But we believe we’ve done something that has been needed for a long time. It took a crisis to bring us to the point where we could actually get this job done.”

    this seems to be the form letter for the dems, I Just filled in the appropriate blanks.

  9. Hey Damon Root, before you right an article decide if he is a she or the other way around

  10. My mistake

  11. let’s face it, since the 1978 Penn Central decision, SCOTUS has been a disaster when it comes to defending property rights. Even decisions that support the property owner, e.g. Lucas, are logically deficient, and intellectually tortured. Not sure there will be a change no matter who is on the court

  12. Connecticut’s controversial use of eminent domain to seize property from one private party and hand it over to another

    By “controversial”, I’m sure you meant “blatantly unconstitutional, illegal, and immoral”.


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  14. the far more interesting issue, in the case of Atlantic Yards, or Columbia University, at least, is not whether or not the emminent domain was constitutional.

    Rather it is – has the municipality committed fraud in the determination of blight? If you purchase properties in an area and let them fall into disrepair, such that the market value of neighboring properties is reduced in advance of a condemnation, does the owner of the neighboring properties have a civil course of action? Frankly, since there is almost always a pattern, does it fall under RICO and expose the players to criminal prosecution?

    The actual eminent domain condemnation may be the only legal part of the entire process and the constitutional haziness on the topic may be a red herring….

  15. You answered your own question, Kagan is a radical marxist. As a black-robed tyrant, she’ll accelerate Obama’s march to communism. Get rid of the Supreme Court elitists.

  16. Uh, it’s hard to be a radical Marxist and an elitist…the two are philosophically contradictory.

    1. Not at all, the elitists see themselves as the most enlightened and gifted, so they would be the ones running the Marxist government, and in turn, running (ruining) most of everyone elses lives.

    2. Not really. The phrase “vanguard of the proletariat” comes to mind.

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