June 23, 2005
We need a mall where your house is

It's pretty rare that I side with Rehquist/Scalia/Thomas on any Supreme Court decision over Ginsburg/Stevens/Breyer, but this is one of those times.

The Supreme Court ruled today that local governments may seize people's homes and businesses - even against their will - for private economic development.


The 5-4 ruling represented a defeat for some Connecticut residents whose homes are slated for destruction to make room for an office complex. They argued that cities have no right to take their land except for projects with a clear public use, such as roads or schools, or to revitalize blighted areas.

As a result, cities now have wide power to bulldoze residences for projects such as shopping malls and hotel complexes in order to generate tax revenue.

Local officials, not federal judges, know best in deciding whether a development project will benefit the community, justices said.

"The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community, including - but by no means limited to - new jobs and increased tax revenue," Justice John Paul Stevens wrote for the majority.

He was joined by Justice Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.


Justice Sandra Day O'Connor, who has been a key swing vote on many cases before the court, issued a stinging dissent. She argued that cities should not have unlimited authority to uproot families, even if they are provided compensation, simply to accommodate wealthy developers.

The lower courts had been divided on the issue, with many allowing a taking only if it eliminates blight.

"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random," O'Connor wrote. "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms."

She was joined in her opinion by Chief Justice William H. Rehnquist, as well as Justices Antonin Scalia and Clarence Thomas.

I can appreciate Stevens' logic, but I think O'Connor nails it. This is a bad, bad decision, and it's going to affect a lot of people.

Posted by Charles Kuffner on June 23, 2005 to Legal matters | TrackBack

I think it is a good decision only if it gets more citizens off their butts to take their government away from non-citizen entities who might control it now through their elected officials.

Posted by: Charles Hixon on June 23, 2005 11:07 AM

Makes me wonder about that sole Metro rail line from the third ward to the Galleria. This only gives the government a license to move on poor neighborhoods now, instead of waiting for higher taxes to take a toll on the neighborhood. Fair market value now is cheaper than fair market value in the future when the neighborhood gets redeveloped and appraisals skyrocket.

I know Renquist and his bunch are into this "property rights" thing, but I think this is bigger than their concern. This could lead to a speedier version of gentrification!

Posted by: Stace Medellin on June 23, 2005 12:08 PM

It's probably the best outcome given the way the Court is supposed to make decisions; that said, I think it's probably not the most just one.

That said, the American people have simply got to stop electing city councils and state governments that will do this sort of thing.

Posted by: Jim D on June 23, 2005 12:15 PM

Most liberals I know are siding with the Rehnquist/Scalia/Thomas unholy trinity on this one. Indeed, most people I talk to of *all* political leanings are in agreement with them on this one.

I think it may be a sign of the impending apocalypse.

Posted by: Tim on June 23, 2005 12:22 PM

Mr. Hixon, I am afraid that your faith that this decision will inspire voters to become more active in the political process is misplaced. The average voter will be more concerned over who gets survives the Rose ceremony on the Bachelorette.

Posted by: Patrick on June 23, 2005 3:44 PM

Well, count me as another one of those who finds himself in company he'd ordinarily not keep. To me, this is a license for developers to bribe the hell out of city/town councils.

Posted by: Linkmeister on June 23, 2005 8:52 PM

Woah, my friends on the left are actually clamoring for a return of substantive due process in the area of economic interests?

I must mark this date!

For the record, I've long argued that substantive due process and Lochner-era jurisprudence have gotten a bad rap, but I never thought my friends on the left would join me on the side of substantive due protection of economic interests!

Excellent! Now if I can just win y'all over to the views of Stephen Sutherland, that will be progress indeed.

Posted by: kevin whited on June 23, 2005 9:01 PM

Eh. It's the powers-of-government-enlargers versus the powers-of-government-reducers in this decision, and that's pretty much all it breaks down as. Stevens et al. read "public use" broadly, O'Conner et al. would construe it narrowly.

Liberals tend to prefer expansive powers of government in the domestic sphere, narrow powers in the individual rights sphere, and conservatives contrariwise. This is simply one of the many cases that point out that the Supreme Court lines up on axes other than liberal-conservative. Scalia lining up for all those criminal defendants in the Apprendi/Ring line of cases doesn't make him a liberal.

Kennedy's concurring opinion here is somewhat controlling, actually, and he makes a point of cautioning people that corrupt and pretextual takings (e.g., bribing the development board) would violate due process.

Posted by: Greg Morrow on June 24, 2005 9:38 AM

Good post!

Posted by: ttyler5 on June 24, 2005 10:11 AM

This is simply one of the many cases that point out that the Supreme Court lines up on axes other than liberal-conservative.

I have to disagree here (with Greg and Kuff), and I point you to Scott Lemiux's post over at Ezra Klein.

Scott hits home a strong point: what local officials are doing in New London might be bad public policy (I honestly don't know enough about New London to have an informed opinion about this), but it isn't unconstitutional.


Tangentially, this confirms a fear I've been knocking about the back of my head the last few weeks (especially regarding young people, who are extremely impressionable). When Democrats take a libertarian rhetorical stance and create a political alliance with libertarian-leaning voters and activist groups, they risk diluting the fundamental liberal vision of the US: government can be an instrument of good, and we should do everything in our power to make it one.

As for individual rights, of course government shouldn't infringe on them. But when the rhetoric against anti-sodomy legislation or intervening in the sad, personal tragedy of a woman in Florida becomes, "Government needs to butt out!" rather than "People have absolute, individual rights to bodily autonomy which must be respected," I worry that there might be some real unintended consequences to how we argue our beliefs.

Posted by: Ryan Goodland on June 24, 2005 10:17 AM

I agree this decision seems like a bad one on first blush, but then I remember that we did something similar here in San Antonio a while back - it's called The Riverwalk, and I kind of like it.
Fortunately, the property owners along the river here all went along with the city's plans to develop the Riverwalk, but what if someone had stubbornly sat on their land and refused to go along with the rest? The City of San Antonio used its power of eminent domain to develop the Riverwalk, taking a small parcel for public use and selling the rest to hotels and restaurant developers. As a result we have one of the top tourist attractions in the nation and the entire city has benefited greatly.
The folks who are bemoaning this Supreme Court decision should consider this.
The real question in this case came down to who decides what a public use is - locally elected city officials or the courts. What's your preference?

Posted by: Mike Thomas on June 24, 2005 11:33 AM

Somewhere Robert Mugabe is laughing his ass off.

Posted by: Patrick on June 24, 2005 1:45 PM

In my haste to post this, I obviously didn't make myself very clear. I'm perfectly fine with the concept of eminent domain. It's the expansion of that concept to include private development that I object to. To be blunt, I don't want to give Perry Homes any bright ideas. That's my problem with this ruling.

Posted by: Charles Kuffner on June 24, 2005 9:18 PM

Mike Thomas, these guys aren't taking a piece of development property along the present-day Riverwalk area, they are bulldozing a blue collar neighborhood to build condos and yacht slips.

I don't know about you guys, but I've already got a letter ready from my state wide taxpayers group to the Texas delegation demanding Congressional intervention immediately. It's going out to my contacts in their district offices immediately, and will be hand-delivered by them to our Texas delegation members.

Posted by: ttyler5 on June 24, 2005 11:21 PM

One last note here, the media covered O'Connor's dissent but Thomas' is the best of the best on this one.

Check it out:


Posted by: ttyler5 on June 25, 2005 1:03 AM