Progressives Are Their Own Worst Enemies in New SCOTUS Case

Eminent domain abuse rears its ugly head in Mt. Holly v. Mt. Holly Gardens Citizens in Action

Progressives are up in arms over the possibility that the Supreme Court might rob the country of another tool for the protection of minorities and the poor. Few, though, seem to have considered progressivism's own culpability in the case.

The question concerns a redevelopment plan in the Philadelphia suburb of Mount Holly. Officials there have been razing homes in the low-income Mount Holly Gardens neighborhood with an eye toward building fancier homes (some costing five times as much) in their place.

The residents of the Gardens are fighting the redevelopment plan by claiming discrimination. They argue the city's plan will have a "disparate impact" on black and Latino residents — 75 percent of those who live in Mount Holly Gardens are minorities — and it therefore violates the federal Fair Housing Act.

Disparate impact is a controversial notion. In essence, it says a procedurally neutral policy can be discriminatory if it leads to statistical inequalities. For example: A company that screens out job applicants with a criminal record could be guilty of discrimination if it ends up rejecting a disproportionately higher percentage of minorities — even if that outcome was never the intent. (Having a good business reason for such a rule, however, can exculpate a policy.)

Proving intentional discrimination is hard, but proving statistical disparity is easy: All you need is arithmetic. But if the Supreme Court says disparate impact cannot be used to prove housing discrimination, then progressives will lose a powerful weapon.

What makes this acutely ironic is the fact that the Mount Holly case never could have arisen in the first place were it not for another case that epitomizes progressive folly — and all but guarantees disparate impact: Kelo v. New London.

In that case eight years ago, the Supreme Court eviscerated a key constitutional protection when it said government could use eminent domain for economic development purposes. Instead of seizing private property only for legitimate public uses, such as roads, governments could take property from one private party and give it to another private party whose use of it would be, in government's eyes, better. In the Kelo case that meant bulldozing the modest Fort Trumbull neighborhood to make way for a hotel, offices, fancier houses, and — the hot new fashion in planning circles — an "urban village."

This is the distilled essence of progressivism: Presumably all-knowing technocrats play God with other people's lives, on the presumption that their superior knowledge will produce superior outcomes (superior in their own eyes, at least). As Mark Flynn of the Virginia Municipal League exulted when the Kelo ruling came down, "you can condemn property because you can do something better." Yet often the outcomes are anything but: In New London, the glorious redevelopment never took place, and the land where the homes of Suzette Kelo and her neighbors once stood is now a weedy, vacant lot.

The Arlington, Va.-based Institute for Justice has filed an amicus brief in the Mount Holly case. The institute does not take sides in the disparate-impact debate. Instead, it filed the brief to point out that the sort of eminent domain authorized by Kelo and threatened in Mount Holly has a disparate impact on the poor and minorities — necessarily, inevitably and predictably. Taking property for economic development will never mean tearing down rich people's homes and businesses for the benefit of the poor. It will always mean the reverse.

The conservative dissenters in the case made precisely such a prediction. Justice Sandra Day O'Connor warned that "the fallout from this decision will not be random," and Justice Clarence Thomas said the ruling "guarantees" that eminent domain's burdens "will fall disproportionately on poor communities." Time has proved them correct. A study of 184 eminent-domain cases since Kelo shows that the lash of condemnation has fallen lopsidedly on the backs of minority residents, who made up 58 percent of the areas targeted for condemnation. A follow-up study found "92 percent of residents in New York and Long Island communities targeted by eminent domain were minority, compared to 57 percent in surrounding areas."

This fits a historical pattern. In Kelo's 1954 precursor, Berman v. Parker, concerning blight removal in the District of Columbia, the high court granted a sweeping justification for condemnation: "The concept of the public welfare is broad and inclusive," the court ruled. "The values it represents are spiritual as well as physical, aesthetic as well as monetary." As the IJ brief points out, "the urban renewal district in Southwest D.C. at issue in Berman" was 97.5 percent black. Spiritual and aesthetic improvement of the District's public welfare, evidently, required forcibly evicting 20,000 African-Americans.

Had the Kelo case gone the other way, Mount Holly's plans could have been stopped long before disparate impact became a concern. The Gardens case proves the adage that you reap what you sow. Perhaps it also will teach progressives an important lesson: If you protect individual rights, then the group rights will take care of themselves.

This article originally appeared in the Richmond Times-Dispatch.