Looking Back on Justice Stevens: Kelo

From a Catholic point of view, retiring Supreme Court Justice Stevens’ extreme commitment to supporting unlimited abortion in our country is clearly one of his worst legacies as a justice, and one most likely to be mirrored by whoever is chosen to replace him by President Obama.

There are other reasons to look back with a critical eye on Stevens’ tenure on the court, however, and blogger Lexington at The Economist highlights what he regards as the worst opinion that Stevens’ authored: the majority opinion in Kelo v New London, in which Stevens and the liberal majority of the court held that the constitutional powers of “eminent domain” can be used by local government not only to secure land for true “public use” such as building roads or public buildings, but to secure land for private development. In simply terms: Kelo means your city can force you to sell your home to make room for a new shopping center.

Kelo is certainly one of the worst decisions of recent years (giving far more real room for abuse of power by large corporations than the Citizens United decision, which Obama demagogued in his state of the union address) and underscores in an important way how the “progressives protect the little guy while conservative protect big business” narrative fundamentally misses the real and more complicated dynamics at play in our polity.


6 Responses to Looking Back on Justice Stevens: Kelo

  1. Paul Zummo says:

    underscores in an important way how the “progressives protect the little guy while conservative protect big business” narrative fundamentally misses the real and more complicated dynamics at play in our polity.

    One of the things that struck me about the tea party rally I briefly attended yesterday, and which I forgot to mention in my blog post, was the very anti-corporation tone struck by a couple of the speakers that I heard. They were just as upset with CEOs and corporations as they were with President Obama and the federal government.

  2. Dale Price says:

    Kelo might be the worst decision by the Supreme Court that didn’t involve physical coercion/mistreatment or basic dehumanization of members of the human family.

    A more full-throated authorization of crony politics (albeit hidden behind anodyne prose) is hard to imagine.

  3. My eco-socialist friend pointed me to a Democracy Now! episode on his retirement. Knowing of the Kelo decision, I couldn’t help laugh at the progressives praising Stevens for opposing big business.

  4. John Henry says:

    Friends interviewing to clerk for judges after law school relayed that Kelo was the safest response to the “What Supreme Court decision do you disagree with the most and why?” question in an interview. Both right-leaning and left-leaning judges can appreciate criticism of Kelo, it seems.

  5. Donald R. McClarey says:

    The ending of Justice Thomas’ brilliant dissent in Kelo:

    “The consequences of today’s decision are not difficult to predict, and promise to be harmful. So-called “urban renewal” programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect “discrete and insular minorities,” United States v. Carolene Products Co., 304 U. S. 144, 152, n. 4 (1938), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse. It encourages “those citizens with dis-
    proportionate influence and power in the political pro-
    cess, including large corporations and development
    firms” to victimize the weak. Ante, at 11 (O’Connor, J., dissenting).

    Those incentives have made the legacy of this Court’s “public purpose” test an unhappy one. In the 1950’s, no doubt emboldened in part by the expansive understanding of “public use” this Court adopted in Berman, cities “rushed to draw plans” for downtown development. B. Frieden & L. Sagalayn, Downtown, Inc. How America Rebuilds Cities 17 (1989). “Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them.” Id., at 28. Public works projects in the 1950’s and 1960’s destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. Id., at 28-29. In 1981, urban planners in Detroit, Michigan, uprooted the largely “lower-income and elderly” Poletown neighborhood for the benefit of the General Motors Corporation. J. Wylie, Poletown: Community Betrayed 58 (1989). Urban renewal projects have long been associated with the displacement of blacks; “[i]n cities across the country, urban renewal came to be known as ‘Negro removal.’ ” Pritchett, The “Public Menace” of Blight: Urban Renewal and the Private Uses of Eminent Domain, 21 Yale L. & Pol’y Rev. 1, 47 (2003). Over 97 percent of the individuals forcibly removed from their homes by the “slum-clearance” project upheld by this Court in Berman were black. 348 U. S., at 30. Regrettably, the predictable consequence of the Court’s decision will be to exacerbate these effects.”

  6. Jay Anderson says:

    Here’s the Catholic News Service headline on Justice Stevens’ retirement:

    “Stevens’ retirement leaves court without strongest death penalty critic”


    But the ensuing news item devotes only one sentence to Stevens record on capital punishment (the lede), and includes one sentence about Stevens’ pro-abortion jurisprudence (tucked away at the very end of the piece). Interesting to note which one CNS decided to highlight in the headline and the opening sentence.

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