The Volokh Conspiracy
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Beware misguided "mainstream" legal thought—"Kelo v. City of New London" in perspective
My new Connecticut Law Review symposium article on Kelo v. City of New London tries to place one of the Supreme Court's most controversial ruling in historical perspective. Here is the abstract:
Kelo v. City of New London was in line with precedent, and within the "mainstream" of legal thought. But that is not enough to justify it. Like many of the Supreme Court's worst decisions, it highlights the ways in which the mainstream can go disastrously wrong. Going forward, the best way to rectify Kelo's errors is to overrule it completely, rather than rely on half-measures, such as building on Justice Anthony Kennedy's hard to interpret concurring opinion.
Kelo was a 2005 decision in which the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner. Although the Fifth Amendment only permits the taking of private property for "public use," the justices ruled that the transfer of condemned land to private parties for "economic development" is permissible, because anything that might potentially benefit the public in some way qualifies as a public use. The government was not even required to prove that the supposed benefit would actually materialize. As I describe in more detail in my book about the case, the development project that led to the takings failed miserably, and the condemned property is now used mainly by feral cats.
The ruling caused widespread public outrage, and an unprecedented political reaction against it. But while the majority decision had many flaws, defenders are absolutely right to say it was consistent with longstanding precedent and well within the legal "mainstream" of the day.
In my new article, I explain why that should not give us much comfort. Being in the mainstream is of little value if the mainstream has gone badly wrong. We often talk about how a particular justice or decision we don't like is "extreme" or at odds with respectable mainstream legal thought. But the painful truth is that most of the Supreme Court's worst decisions have not been the result of extremism, but of mainstream legal thought gone off the rails. That was true of horrible rulings like Plessy v. Ferguson, Korematsu v. United States, Buck v. Bell, and even Dred Scott v. Sandford, among others. And it was also true of Kelo, and earlier precedents holding that almost anything can be a public use justifying the taking of property— precedents that ended up authorizing the forcible displacement of hundreds of thousands of people (most of them poor and politically weak). For the most part, the justices who voted for these decisions were not rogue extremists, but respected members of the legal establishment relying on mainstream reasoning and habits of thought.
A truly extreme, non-mainstream ruling is less likely to cause harm than a bad decision that comes about because the mainstream itself has gone bad. The former is unlikely to become widely accepted and more likely to quickly be overruled or limited in its impact. Moreover, the legal culture and the appointment and confirmation process for judges usually effectively screen out advocates of harmful non-mainstream ideas. By contrast, they actually amplify the impact of errors that have themselves become part of the mainstream.