Supreme Court

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.

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  1. but but but intentions not results.

  2. Where’s Robert Clayton to remind us of his Iron Lorez?

  3. Weakening private property rights is only ok if it is used to loot ‘the rich’.

  4. Such is the folly of pragmatism (and the subjectivism which precedes it), the dominant remaining philosophy in America which attempted to rewrite a range-of-the-moment view as an enlightened view of existence, and which fully defines the actions of the leftoids and the neocons (and to a very great degree, most libertarians).

    When you live (and legislate) according to the whimsical desire of the immediate moment, don’t be surprised when yesterday’s whim becomes today’s disaster.

    1. Can someone translate this from Derp to Rational?

      1. “Breaking or warping the law isn’t ok simply because our guy is in charge.”

        Wasn’t that hard to understand.

  5. “Perhaps it also will teach progressives an important lesson”

    Progressives have consistently shown their resilience to learning from historically demonstrable facts.

    1. Socialism will work this time.

  6. Hmmm…imagine if the minority claimants prevail because the court overturns Kelo. With Stevens, the author of Kelo, gone, there could be five votes to accomplish that. What will the Progs say then?

  7. But EVIL CORPORATIONS! It’s their greed that causes these problems!

    1. I never understood the rationale behind the progressives’ love of Kelo. The most telling rationale was that yeah, sure this was favoring a corporation (Pfizer), but we can transform blighted, poor, wretched lives with this down the road!

      1. It’s like Barton says. Kelo incorporates the very essence of the Progressive mentality: we are the altruistic experts who use the power of the state, guided by our expertise, knowledge, intelligence and caring, to build a Better World than you, the Great Greedy Unwashed, can build for yourselves.

      2. Private property rights stop government doing something it wants to do. Therefore works the government thinks importanat don’t get done, therefore we should destroy private property rights.

  8. “The smallest minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities.”

    Ayn Rand

    1. Hahahaha… I can see the leftist’s reply… are you defending the 1% against the rights of the 99%?

  9. How much hinkle could a barton hinkle if a barton could bart hinkle?

  10. FYI, there must have been some bad press because the proggies have now re-branded this as “New Urbanism”

  11. It’s been said before, and it’s worth saying again. Positive rights liberalism (privilege liberalism?) eats itself. It’s belief in positive rights contradicts itself, as it’s various interest groups eventually become at odds with each other over the contradictory messages and goals in it’s mishmash of “free lunch” demands.

  12. Grampa Nick was a big fan of urban renewal. He would look at neighborhoods as “junk” and wish them torn down for something new. He got invited to LBJ’s inaugural ball for his work campaigning for him among Croatian-Americans.

  13. Will they ever be able to overturn that turd of Kelo? Fuck precedent. This isn’t the same SC as it was with Kelo. It’s not like they even have to admit they themselves screwed up, but they do have to admit that, from time to time, the court gets it wrong.

  14. They are everyone’s worst enemy.

  15. Oh, we all know the Progressives will blame “conservatives”. We all know it was the “conservative” William Jennings Bryan who got up on the stand as an expert on the Bible in the Scope Trial and the “conservatives” who pushed for eugenics and segregation.

  16. We had to bulldoze the neighborhood in order to save the neighborhood.

  17. my classmate’s half-sister makes $72 every hour on the internet. She has been without a job for eight months but last month her payment was $16159 just working on the internet for a few hours.Here’s the site to read more……


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