John Paul Stevens has had it rough. In 2005, Stevens, then an associate justice of the U.S. Supreme Court, authored one of the worst SCOTUS decisions of the past 50 years. Kelo v. City of New London let a local government bulldoze a working-class neighborhood so that private developers would have a blank slate on which to build a luxury hotel, a conference center, and various other upscale amenities. The city's goal was to erase that existing community via eminent domain and replace it with a new commercial district that would (maybe? hopefully?) fill the local coffers with more abundant tax dollars.
Stevens, the poor soul, has been catching hell for this lousy ruling ever since. Kelo is "the most un-American thing that can be done," declared Democratic Rep. Maxine Waters of California, an outspoken liberal. Her ideological opposite, conservative talk radio host Rush Limbaugh, has said that Kelo "bastardized" the Constitution. "Government can kick the little guy out of his or her homes and sell those [homes] to a big developer," Limbaugh objected. Hating Kelo would seem to be the one thing that can bring a divided America together.
In 2011, about a year after he retired from the Supreme Court, Stevens apparently grew tired of the controversy and decided to respond to his critics. "The Kelo majority opinion remains unpopular," Stevens acknowledged in a speech at the University of Alabama School of Law. "Recently a commenter named Damon W. Root described the decision as the 'eminent domain debacle." In my defense, I only described Kelo as an eminent debacle because that's exactly what it is. The destructive ruling paved the way for atrocious real world consequences. It also further mangled the Takings Clause, which forbids the government from using eminent domain for anything less than a legitimate "public use," a concept that has traditionally been understood to apply to things like roads or bridges—not to swanky redevelopment schemes run by for-profit enterprises. But that constitutional requirement was lost in the eyes of Stevens. "The disposition of this case," he wrote in Kelo, "turns on the question whether the City's development plan serves a 'public purpose.'" Critics like Root, Stevens grumbled in 2011, "mis-described" the case.
Eight years have now gone by, and Stevens is apparently still suffering from the barbs of his Kelo critics. In his new memoir, The Making of a Justice: Reflections on My First 94 Years, which was published this week, Stevens again complains that "public commentary" by "Damon Root" and others gives short shrift to his judicial handiwork.
Stevens' principal defense of Kelo is that he had no choice, that his hands were tied. For one thing, he writes in The Making of a Justice, the Supreme Court "had a duty to give deference" to "the state courts' evaluation of the particular development plan that gave rise to the litigation." He is referring to the Connecticut Supreme Court's 2004 decision allowing the use of eminent domain to proceed against Susette Kelo and a number of her neighbors.
What Stevens neglects to mention is that Connecticut Supreme Court Justice Richard M. Palmer, one of the four justices who voted against the homeowners and thus directly precipitated their appeal to SCOTUS, personally apologized to Susette Kelo in 2010, saying he "would have voted differently" if only he knew better at the time. As reported by Jeff Benedict of The Hartford Courant, who was standing there when it happened, "Palmer turned to Susette, took her hand and offered a heartfelt apology. Tears trickled down her red cheeks. It was the first time in the 12-year saga that anyone had uttered the words 'I'm sorry.'" So much for the wisdom of deferring to that state court.
Stevens also insists that he had a "duty to give deference" to the state legislature and the eminent domain law that it passed. In 2011, for instance, he argued that Kelo is valid because it "adhered to the doctrine of judicial restraint" and was rooted in "Justice Oliver Wendell Holmes' broad reading of the text of the Constitution—which allows the states the same broad discretion in making takings decisions that they possess when engaging in other forms of economic regulation." In his new memoir, Stevens' makes a similar point, likening Kelo to Justice Holmes' famous dissent in Lochner v. New York (1905), which claimed that federal judges should not be in the business of interfering with "the right of a majority to embody their opinions in law."
Of course, Holmes also famously deferred to the state of Virginia and its decision to forcibly sterilize seventeen-year-old Carrie Buck, who had been raped and impregnated by the nephew of her foster mother and committed to a state home for the "socially inadequate" by her foster parents. "The public welfare," Holmes wrote in Buck v. Bell (1927), may "call upon those who already sap the strength of the State for these lesser sacrifices." Speaking of his overall philosophy of judging, Holmes once wrote that "a law should be called good if it reflects the will of the dominant forces of the community, even if it will take us to hell."
Personally, I'd think twice before invoking Holmes as a judicial role model. But, as is perhaps already clear, Stevens and I have somewhat different views about how federal judges are supposed to handle such constitutional cases.
A few paragraphs ago, I noted that Stevens' Kelo opinion has been attacked by figures on both sides of the political aisle. But there is at least one high-profile U.S. politician who thinks that Stevens got it right: Donald Trump. "I think it's a wonderful thing," Trump told Fox News about Kelo. "You need a house in a certain location, because you're going to build this massive development that's going to employ thousands of people, or you're going to build a factory, that without this little house, you can't build the factory—I think eminent domain is fine."
Trump has also attempted to profit from a Kelo-style taking. In 1994, Trump partnered with a New Jersey agency, the Casino Reinvestment Development Authority, in an effort to kick an elderly widow out of her Atlantic City home in order to make way for a new limousine parking lot for the Trump Plaza hotel and casino.
Just imagine what would have happened if that case had come before Justice John Paul Stevens and his pliant doctrine of deference. Thankfully, it came before the Superior Court of New Jersey, which laughed Trump out of court.