Worst SCOTUS cases

[bedstuy]

The obvious ones: Dred Scott, Korematsu, The Slaughterhouse cases, Plessy
Bowers v. Hardwick
Lochner and the crazy libertarian cases from the gilded age in general
DC v. Heller
Ex parte Quirin

I would actually defend a few of the ones previously mentioned.  I think Kelo is definitely the right result and Bush v. Gore was arguably the best solution to a complete mess. 

[bedstuy]

To those that support Kelo, I strongly disagree that it was the correct decision based on the Fifth Amendment. The Court has effectively wiped out the Public Use Clause with its overly broad interpretation of government taking authority. The idea that the Constitution permits takings for the sake of economic development is a broad and dangerous expansion of power. As Justice O'Connor's dissent notes, the distinction between private and public use is of vital importance. I think her dissent would have been the proper result in the case, keeping in line with a more appropriate interpretation of what "public use" actual means. The Court's decision does not take seriously the "public use" limitation on eminent domain.

Two things:

-There is no public use clause.  "Public use" is just explaining the type of situation where just compensation is going to be required. Amendment doesn't say: Private property may only be taken for a public use, but not a private use. 

-There's no way for a judge to make a clear line between what's a private and public purpose.  That's inherently a political decision.  There may be some nightmare scenario with eminent domain but, it's either going to be averted by the just compensation requirement or perhaps substantive due process or some rational basis challenge. 

[bedstuy]

Two things:

-There is no public use clause.  "Public use" is just explaining the type of situation where just compensation is going to be required. Amendment doesn't say: Private property may only be taken for a public use, but not a private use. 

-There's no way for a judge to make a clear line between what's a private and public purpose.  That's inherently a political decision.  There may be some nightmare scenario with eminent domain but, it's either going to be averted by the just compensation requirement or perhaps substantive due process or some rational basis challenge.

I do not agree. "Public use" is clearly meant to constrain the government's taking power. The issue in Kelo is whether or not the taking of private property for economic development satisfies the Fifth Amendment. I would agree with the dissent that it does not. To follow the Court's Kelo decision to its logical conclusion is one where the government can take private property for any use where the benefit to the public may only be merely incidental (e.g. increased tax revenue for the government). And, as the dissent further notes, almost any taking can result in incidental benefits to the public. If "public use" is to mean anything in constraining eminent domain, there must be judicial standards in place. With respect to your second point, I must quote Justice O'Connor's dissent:

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Her dissent does much more justice to the Fifth Amendment in keeping a reasonable balance between eminent domain and private property rights.

If you read the text of the 5th Amendment that way, that's fine.  It's certainly not clear that it means what you say it does. 

And to Justice O'Connor's point:  I understand where she's coming from.  But, there's no good line to draw between public use and non-public use from the judicial branch.  And didn't Justice O'Connor write the majority in a public use challenge to a Hawaiian land reform?  Land reform seems like a private use.

[bedstuy]

I'm not saying there couldn't be extreme circumstances where eminent domain can be used. Midkiff was such an example. However, it would need to be crafted in such a manner that goes beyond just economic development. I do not think simply increasing the tax base is enough to justify a taking, which is essentially the basis of using the economic development justification. The problem with Kelo is that it gives carte blance authority to the government on eminent domain. Justice O'Connor's dissent maintains a proper balance between takings for public use and limitations on that very power. On the other hand, I don't go as far as Justice Thomas does in his dissent. I would say that eminent domain should probably be subject to heightened scrutiny or perhaps even strict scrutiny.

Here's your problem:  If I'm a city, I can easily get around Justice O'Connor's rule.  Any smart person can conceptualize a economic development program into a program to abate a public welfare problem like the blighted part of DC in the Berman case.  The city just needs to do a series of studies that find that some public nuisance in a particular area and making legislative findings on the record for a trial court judge to see.  And then, what have you accomplished?  A city has spent more money creating studies and reports, a trial court has a ridiculously difficult factual inquiry and you probably end up with the same result for the landowner in 99% of the cases.