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.