Worst SCOTUS cases

[politicallefty]

I'll limit my list to ten on this, not in any particular order:

Korematsu v. United States
Dred Scott v. Sanford
Lochner v. New York
Schenck v. United States
Kelo v. City of New London
Santa Clara County v. Southern Pacific Railroad
Plessy v. Ferguson
Morse v. Frederick
Citizens United v. FEC
Gonzales v. Raich

Of these, I think Korematsu stands as the absolute worst decision ever handed down by the Supreme Court. It outright and blatantly ignores the Constitution on several counts. Dred Scott is an abomination based on the ruling that African-Americans could never be citizens of the United States, which is ludicrous even prior to the Reconstruction Amendments. It has no constitutional basis whatsoever. I take a very strict view on freedom of speech, so I definitely had to put Schenck and Morse on my list. For those familiar with Supreme Court cases, the others on my list are fairly obvious.

To the OP, with respect to Morehead v. New York, your main problem should reside with Lochner v. New York. It and its progeny are responsible for the now-defunct "liberty of contract", which struck down virtually every economic regulation imaginable. It was that line of reasoning that made a point of targeting the early years of the New Deal.

[politicallefty]

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.

[politicallefty]

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.

[politicallefty]

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.

As to the point of public and non-public use, I agree with my prior O'Connor quote that deference to the legislature requires a judicial check. If you leave the definition of "public use" completely to the political branches, it loses any power of constraint on the government. I'm not anymore comfortable letting the government have sole determination as to what constitutes "public use" than I am with any other clause in the Bill of Rights.

Yes, Midkiff was way, way more radical than Kelo, so it was pretty dishonest of O'Connor to come back around and say Kelo was not okay but Midkiff, where she wrote the (unanimous!) majority, was. Of course, the beneficiaries of eminent domain in Midkiff (poor Hawaiians) were certainly more sympathetic than the beneficiaries in Kelo (some pharmaceutical company, I think?), but that shouldn't change the jurisprudence.

http://en.wikipedia.org/wiki/Hawaii_Housing_Authority_v._Midkiff

(Of course, I think both cases were unquestionably rightly decided, both from a policy and a legal standpoint.)

I don't agree that Midkiff was more radical than Kelo in terms of its legal implications. There were extraordinary circumstances in that case, as Justice O'Connor's dissent notes:

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Justice O'Connor's unanimous opinion in Midkiff and her dissent in Kelo are not in opposition to one another. I could say more, but I feel her dissent already does an excellent job summing up my thoughts:

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Nothing in the Fifth Amendment ever said that a private person is required to sell property to a private interest.  The only imaginable exceptions are for easements for public utilities which are heavily regulated or the condemnation of nuisance properties. The idea that the state might seek to bulldoze houses so that a shopping mall can be built instead  because the shopping mall will generate more tax revenue ignores the contention that governments are not legitimately in business to maximize tax revenues.

I would completely agree with your first sentence. However, the issue is whether or not the government can take private property from one owner and transfer it to another in order to support economic development.

As for what I bolded in your quote, are you arguing that takings for private use that benefit the public only through additional tax revenues satisfy the Public Use Clause of the Fifth Amendment? I don't even think Kelo went that far in terms of its reasoning, although that may be the logical conclusion of its decision unless it is scaled back in a future ruling. If the Court did go that far, nearly the worst of the dissent's fears would have been realized. There would be virtually no limit on the government's taking power if it could be justified solely on the basis of additional tax revenue.

(I also want to make a point that I am not at all making policy arguments here. This debate seems to have been mostly settled among the states, with the vast majority of states having already restricted eminent domain in their respective jurisdictions. Most discussion on this topic is just academic at this point. I'm arguing the constitutional issue with regards to the Fifth Amendment.)

[politicallefty]

Isn't Kennedy's test satisfactory in that regard? Since he was the decisive vote in that case, one could consider his view effectively prevailed.

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Justice Kennedy's concurrence isn't controlling. He still joined the majority opinion. I'll give him some credit for at least envisioning some limits, but I still think his reasoning is far too deferential to the government. My argument is that economic development does not satisfy the restrictions placed upon the government by the Fifth Amendment. The "public use" requirement needs more than an economic development justification. In order for that clause to have meaning, it must have real and substantial limits. Secondary (or perceived secondary) public benefits are simply not enough to justify takings.

[politicallefty]

Take a look at a place like Flint, Michigan.  Take a look at not just the (nonexistent) tax base of the city, which is supposed to fund (inadequate) public services, but also take a look at the lack of opportunities for employment and commerce.  In extreme cases like this, economic development is a public use, full stop- both because it becomes a prerequisite for the effective provision of any other public services, and because it provides important benefits to residents in its own right that "the market" is not going to get around to without intervention.

Now, obviously, it's important to have an open, fair, and thorough process here: cities have to have real community input, where they can ideally choose from a number of proposals, and then bring them to the public before any decision is made.  And, there rather then the courts, is where it is appropriate to fight takings that overreach.  The best outcomes do not come when we circumscribe important planning activities out of fear that our governmental institutions are rotten, but rather when we work positively to ensure that our governmental institutions are robust and responsive instead.

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.

[politicallefty]

Michigan affirmative action case 2014.

Is it your belief that the Constitution requires affirmative action? If so, I would like to know your reasoning behind such a position.