Supreme Court

Thomas and Gorsuch Say Kelo Eminent Domain Ruling 'Was Wrong the Day It Was Decided' and 'Remains Wrong Today'

The controversial 2005 case "strayed from the Constitution," say Thomas and Gorsuch.

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In 2005 the U.S. Supreme Court allowed a local government to bulldoze a working-class neighborhood so that a private developer would have a blank slate on which to build luxury apartments and other upscale amenities. That development scheme was supposed to widen the local tax base. But the exact opposite occurred. The neighborhood was razed only to see the scheme sputter and die. Homes and businesses were destroyed on behalf of a development plan that never happened. After Hurricane Irene blew through the area in 2011, local officials encouraged city residents to use the ghostly remains of the once-thriving neighborhood as a dumpsite for storm debris.

The legal question in that case—Kelo v. City of New London—was whether the land grab passed muster under the Takings Clause of the Fifth Amendment, which says that the government may only take private property for a "public use" and must pay "just compensation" when doing so. The Kelo majority upheld New London's taking because it served what the Court called a "public purpose," which is a more elastic concept than what the constitutional text actually says.

Today, the Supreme Court declined to hear arguments in a new case that would have put the Kelo precedent on the judicial chopping block. Dissenting from that refusal to hear the new case, Justice Clarence Thomas, joined by Justice Neil Gorsuch, faulted the Court for keeping the 16-year-old precedent alive. "This petition [Eychaner v. Chicago] provides us the opportunity to correct the mistake the Court made in Kelo," Thomas wrote. "That decision was wrong the day it was decided. And it remains wrong today."

Thomas should know. He dissented in Kelo and accurately predicted the decision's destructive aftermath. "The deferential standard this Court has adopted for the Public Use Clause," Thomas wrote in his Kelo dissent, is "deeply perverse."

Thomas, joined by Gorsuch, came out swinging against the Kelo perversity again today. "The Constitution's text, the common-law background, and the early practice of eminent domain all indicate 'that the Takings Clause authorizes the taking of property only if the public has a right to it, not if the public realizes any conceivable benefit from the taking,'" Thomas wrote. "The majority in Kelo strayed from the Constitution to diminish the right to be free from private takings."

Thomas concluded by reminding the Court of Kelo's pernicious real-world impact. "Failure to step in today not only disserves the Constitution and our precedent," he observed, "but also leaves in place a legal regime that benefits 'those citizens with disproportionate influence and power in the political process, including large corporations and development firms.'"

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  1. Now they just need to convince three more justices that it was and is a bullshit reading of a perfectly clear section of the constitution and get a case in front of them.

    My guess is the Umpire and the Prep Predator will side with the three liberal justices to continue letting the government do whatever it wants though. Can’t have all their Georgetown friends and neighbors mad at them.

    1. Can’t have all their Georgetown friends and neighbors mad at them.

      Roberts will never allow the court to hear a case that may end up in a decision that would make him feel uncomfortable at the club.

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    2. “the Prep Predator”

      Right: I suspect that the confirmation process broke him.

    3. I don’t hold much sympathy for the denizens of New London Conn. these are the same people who post signs on their front lawns “sailors and dogs keep off the grass”. Personally I am glad the denizens of the town got screwed.

  2. In 2005 the U.S. Supreme Court allowed a local government to bulldoze a working-class neighborhood so that a private developer would have a blank slate on which to build luxury apartments and other upscale amenities. That development scheme was supposed to widen the local tax base. But the exact opposite occurred.

    Even if the scheme had been wildly successful, it still would have been wrong.

  3. After Hurricane Irene blew through the area in 2011, local officials encouraged city residents to use the ghostly remains of the once-thriving neighborhood as a dumpsite for storm debris.

    And I have very little doubt this was a carefully calculated ‘fuck you’ to the former residents of the neighborhood, particularly Susette Kelo.

    1. The main reason I despised Trump long before he became a reality TV star or President.

      1. Yep, a really bad move by Trump.
        But you’re just fine with Biden being a bag-man for his coke-stuffed kid, right, TDS-addled asshole?

        1. BDS Flag!

          Don’t feel bad rummy! At least it’s not a BDSM flag! Those can get painful!

        2. Tu Quoque

      2. Finally. You admit you care about personality more than policy. What a worthless value system you have.

        1. Ad Hominem

          1. Bad bot needs to learn what an ad hominem actually is. Hint… It’s not merely insulting someone’s character or value system.

        2. Character and personal history is important when selecting someone for a position of power. You elect a person, not a set of campaign promises.

  4. Kennedy [retired], Ginsberg [dead], Breyer, Souter [retired], and Stevens [retired now dead, who wrote the majority opinion].

    We know how Gorsuch and Thomas would rule, and Alito; Ginsberg has been replaced by Barrett. Kavanaugh has replaced Kennedy {?] and of course Roberts, Kagan, Sotomayor, and Breyer will support Keto.

    As usual Kavanaugh would be the wild card. Same with gun rights.

    1. As usual Kavanaugh would be the wild card.

      But you know it was totally important for every libertarian to GO TO THE MAT to defend Kavanaugh during his confirmation, because that would be ‘pwning the libs’.

      1. Still butt hurt over the guy who is now AG, huh?

        1. You are referring to Gorsuch? I actually think he was a decent pick. But Kavanaugh was always a DC swamp creature who was always going to be in the mold of a LAW AND ORDER conservative rather than a defender of liberty. But noooo, most people around here chose to ignore his record and focus on PWNING THE LIBS.

          1. What is “pwning the libs” supposed to mean?

      2. I didn’t see a lot of defense of Kavanaugh. What I did see (and I agree) is a lot of people who thought that setting the precedent that all you need is one unprovable (and un-disprovable) accusation of sexual misconduct from the distant past to sink a nominee would be a bad thing.

      3. Or you know they felt that a new charge stemming from a decades old incident with no collaborating evidence should not be the basis for whether a judge gets an appointment despite the judges judicial philosophy. Perhaps the democrats instead of using character assignation should have made the case based on his judicial philosophy if they wanted libertarians on their side; but not sure why they would bother since no one really cares what we think.

        1. *assassination. Damn edit button!!!!

      4. It was important because they were completely baseless allegations. Maybe they should have hammered him on his positions in regards to the 4th amendment.

        Unfortunately Democrats don’t actually care about the bill of rights enough to actually defend it.

        1. OH NO! Did someone say something mean about someone nominated to something?????

          Spare me this fake sanctimony. How many times have Senators made baseless allegations against someone in the past week alone?

          1. Tu Quoque

      5. Lol. Jeff is defending character assaination from the left as an actual virtue.

        What the fuck is wrong with you?

        1. He’s a disingenuous fuck?

  5. “…local officials encouraged city residents to use the ghostly remains of the once-thriving neighborhood as a dumpsite for storm debris.”

    You vote for democrats, you get trashed by them.

    1. Uh your boy, Donald tried to have his pals in the Democratic party (assuming because AC, NJ) do the same thing to get a parking lot paved over Vera Coking’s home. And then while president he allowed the CDC to cancel evictions, a massive breach of private property rights. Just saying.

      1. Agreed. And yet Trump has done more to raise awareness of government overreach and abuse than any other politician in a generation. And that’s not discussing his push-back against them.

      2. But I discount stuff like that where there’s personal benefit to be gained. Doesn’t count in the overall score, because personal motivation is operating there; says nothing about his ideas in situations where he doesn’t have a stake.

        1. Roberta the ONLY reason any thing gets accomplished is b/c where there’s personal benefit to be gained things get done. Altruism is a mythical fantasy.

  6. “…strayed from the Constitution…”?

    Made hash of it!

  7. What the article fails to raise or address is whether the Takings Clause was moral and valid in the first place.

    “…the Takings Clause authorizes the taking of property only if the public has a right to it…”

    Under what circumstances does the public have the right to any private property?

    I’m not a libertarian. Perhaps this is one of the reasons why: that this fundamental issue is ignored by an otherwise excellent piece.

    Richard Hale Shaw

    1. “Under what circumstances does the public have the right to any private property?”

      Good question. I am thinking that a State government would have the right to take private land (and justly compensate the owner) if it was necessary to fulfill something the State’s constitution requires, which could be something like acquiring land to build prisons, or government offices, or whatever. On the other hand, most of those facilities, or land, could be easily leased from the owner. There are probably a few more things which might fit on that list. But only a few.

      1. Ditto the local government, if it met the requirements of both the State and US constitutions.

    2. Wouldn’t begin to speak for libertarians (we’re a diverse group). But for me personally, roads or building a harbor or a military base would be a couple of circumstances where eminent domain would be justified (defense, transportation/movement of people in general).

      1. A harbor might be necessary for the feds to build, seeing as the feds are required by the constitution to have a navy. There is no requirement, beyond, perhaps, the National Guard (which is considered the “organized” part of the militia) to feds to seize private land for military bases, or interstate highways — not that such things can’t be framed as part of the public infrastructure, however. Note that the feds have fairly strict limits on how much land they can “own,” which is why most of the land they control is land they don’t actually, technically, “own.”

        1. I was thinking part of a breakwater, or maybe because the area is a frequently flooded area that we (the People) have been on the hook for numerous rebuilds in.

          But not many more.

          I remember a HS teacher waxing poetic about Robert Moses’ wisdom of putting highways through “blighted” areas, and that He knew better than the people who owned that property what its best use would be. Of course that was all justified as a Constitutional taking, but look how all that turned out… why, even the SJW’s of the world agree that it was wrong! (Something about a broken clock being right twice a day)

          The short answer is, yes, there are justifiable, Constitutional, takings, but they are few and far between.

    3. Under what circumstances does the public have the right to any private property?

      When the property is public.

      1. Well, I think I missed the nuance of your question. I see what you’re asking is, why is there any conditions under which a taking can occur. Probably shouldn’t be any.

        1. Thanks and yes, I don’t think I was clear about it.

          The Takings Clause of the 5th Amendment limits the government’s ability to take private property without just compensation.

          I’m raising the question of why we have a Takings Clause at all: if we can’t find a case where the government should be able to confiscate private property, then the problem is that the government can seize private property at all.

          Outside of a national emergency that’s clearly defined, I suggest that the government has NO RIGHT to confiscate private property.

    4. It’s born out of common law. If you really want to know what the justification is, then brush up on that. I’m not versed in it enough to answer the question. Locke was a proponent of the commons. Perhaps becoming reacquainted with the concept would be a good thing.

    5. The US border is not all federal land but mostly private property.

  8. The ruling was in accordance with past decisions, that deferred to local governments to decide whether the taking was for “public use”.
    The SCOTUS, despite the armchair quarterbacking of Gorsuch – Thomas got his say, in 2005 and was outvoted – didn’t want to get involved in a local decision, that was several court actions and years removed from the facts on the ground.
    The ones to be blamed were the local authorities in New London, Connecticut.
    The correct action, taken by several states, was to ban local governments from overreach on their decisions to take property, something that would keep a repeat of Kelo.

    1. …from happening.
      Damn no edit button!

  9. Let me just add: fuck Ginsburg and anyone who holds her up as some kind of feminist icon. She was fine with stealing Kelo’s house and letting Raich die.

    -jcr

    1. Silencing political speech. Don’t forget about silencing political speech.

  10. If they can overturn Kelo, that would be good. If they have the guts to overturn Wickard, they’d deserve to be carved into Mount Rushmore.

    -jcr

    1. Overturn Wickard?

      Lovely dream.

      I’d put the odds of that happening at about equal to the odds of Ginsburg getting up out of the grave and admitting that she was wrong on so many, many, many cases.

      1. The only way Wickard gets fixed is with a Const. Amendment.

        …. a very carefully worded Constitutional Amendment, so that they can’t weasle out of it again.

  11. Does it matter? Stare Decisis – they’ll rule as if its precedent anyway. You know, gotta have *stability*.

  12. OK, but how do you decide if the public has the right to the property in question?

  13. The far more interesting land use case is Euclid vs. Ambler, a 1926 ruling that underpins modern municipal zoning.

    Current zoning forbids private citizens from, say, adding an extra floor to an existing residential property, or replacing a single family home with an apartment building. Stripping private citizens of their right to do as they please with their own property within reasonable grounds (that is, a toxic waste dump can’t be put in a residential neighborhood) represents a taking of property rights.

    Beyond the private loss imposed on property owners, this taking negatively impacts society at large by keeping new, higher density housing out of desirable, job-rich metro areas, which ultimately artificially raises home prices due to the restriction on supply.

  14. I recall being astonished that it was the liberal justices who allowed this outrageous miscarriage of justice to stand! I have never seen any reasoning that could justify such an unbelievable corporate theft of private property in the name of government!

    1. The socialists (light or otherwise) who misappropriated the word “liberal” about 90 years ago don’t believe in private property, so stealing it is just fine with them.

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