Supremes refuse to fix Kelo v. City of New London
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  Supremes refuse to fix Kelo v. City of New London
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Author Topic: Supremes refuse to fix Kelo v. City of New London  (Read 546 times)
dead0man
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« on: July 02, 2021, 11:52:05 PM »

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The U.S. Supreme Court refused to consider putting new limits on the government’s power to use eminent domain to take private property for economic development purposes.

The justices on Friday turned away an appeal by Chicago businessman Fred Eychaner. He had asked the court to cut back or overturn a controversial 2005 ruling that said local governments have broad power to take over private property to make way for new development.

Justices Brett Kavanaugh, Clarence Thomas and Neil Gorsuch said they would have heard the appeal -- one short of the required four. Writing for himself and Gorsuch, Thomas called the 2005 decision a “mistake” that benefits citizens with political influence.
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politicallefty
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« Reply #1 on: July 03, 2021, 11:12:02 PM »

That was always a decision I felt the liberals on the Court got completely wrong. I feel like Justice O'Connor had this right. It's likely that the Court doesn't feel that this is the appropriate vehicle for reconsidering or tailoring back Kelo.

This ruling did lead to a major change in eminent domain across many states though (and most eminent domain happens through state and local governments), from the bluest of the blue to the reddest of the red and everything in between.
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MarkD
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« Reply #2 on: July 04, 2021, 07:31:16 AM »

I've never been able to think of any reason to disapprove of the Kelo decision. I haven't read that opinion; I have read a statement by a critic of Kelo who said that the decision was contradictory to at least one precedent. If that's true, then I'll change my mind and acknowledge that it is wrong for the Court to contradict a precedent but not admit that there is any contradiction.

To me, it seems pretty obvious that the only important principle of the Takings Clause is that property owners should be justly compensated when government -- the federal government -- confiscates their property. The prepositional phrase "for public use" seems like an afterthought. When Congress proposed the Fifth Amendment in 1789, it was probably thought that the only reason the federal government would ever confiscate any property was because said government was going to use it for a public purpose. But the concept that the federal government must be limited to only allowing the federal government to confiscate property is if it will put that property to a public use does not seem to be consistent with how the Takings Clause was worded.

So what the Court did in Kelo was exercise a great deal of judicial restraint and defer to a local government about that government's discretion in choosing what would be a "public use" of confiscated property. The Court did not increase its power, it allowed state and local governments, and maybe the federal government, to exercise a power that they wished. IMO, that is far, far less objectionable as compared to when the Court goes the opposite direction and renders erroneous interpretations of the Constitution that increase the Court's own power and take power aware from legislative bodies. And certainly, because the Kelo decision deferred to legislatures, we still, as American voters, have the power to restrict our own state, local, and maybe even federal government's power to confiscate property willy-nilly, and we can legislate ways to restrict eminent domain.

Several years ago, I watched a program on C-SPAN called "Debate on the Role of the Supreme Court." The stage was shared by six debaters and a debate moderator. Among the six debaters were three liberals and three conservatives. The debate moderator said the subject of the debate was going to be "whether the Supreme Court has overstepped its constitutional mandate." One of the liberals on stage was Alan Dershowitz, who said that the Court has been making three different kinds of mistakes when interpreting the U.S. Constitution: it has sometimes overstepped its constitutional mandate, it has sometimes understepped that mandate, and it has sometimes misstepped. Overstepping means that the Court invalidated a government action -- declared it to be unconstitutional -- but the Court's purported interpretation of the Constitution was a mistake, so the Court should have upheld the action instead. Understepping means that the Court upheld a certain governmental action -- declared that action to not be a violation of the Constitution -- but the Court's interpretation was, again, a mistake, and the Court should have struck it down. Misstepping means that the Court arrived at a conclusion that happened to be correct, but the Court's opinion nonetheless contains a mistaken explanation of what the Constitution means; the Court "came to a correct conclusion but for the wrong reason." If there had been a precedent, at some point before Kelo, that provided a narrower interpretation of the phrase "for public use" in the Takings Clause than what Kelo said, then I'll admit that the what the Court did in Kelo was understep it's constitutional mandate. But even if Kelo never gets overturned, remember what political options you still have, because the Court deferred to the legislatures of America.
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Donerail
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« Reply #3 on: July 04, 2021, 10:39:08 AM »

That was always a decision I felt the liberals on the Court got completely wrong. I feel like Justice O'Connor had this right. It's likely that the Court doesn't feel that this is the appropriate vehicle for reconsidering or tailoring back Kelo.
O'Connor's decision didn't make any sense at all. She recognized, correctly, that she would have to negotiate around her own (unanimous) opinion in Midkiff, and attempted to do so by saying that a taking would serve a public purpose if the taking itself alleviates a harm. That makes sense for cases like Berman, where the taking itself is a key component of the "urban renewal" plans, but it doesn't make sense in Midkiff. The harm in Midkiff was not that the land was blighted, but that it was owned by a small handful of people, and the taking in Midkiff only achieved its goal of stabilizing the land market once that land was given to other private parties (in Midkiff, residential leaseholders). That transfer to private parties is what O'Connor criticized in Kelo, but it's also exactly what she approved of in Midkiff! There's no way the framework she proposed in her Kelo opinion would produce the result that she (and eight other justices) viewed as relatively uncontroversial.
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StateBoiler
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« Reply #4 on: August 23, 2021, 03:57:42 PM »

That was always a decision I felt the liberals on the Court got completely wrong. I feel like Justice O'Connor had this right. It's likely that the Court doesn't feel that this is the appropriate vehicle for reconsidering or tailoring back Kelo.
O'Connor's decision didn't make any sense at all. She recognized, correctly, that she would have to negotiate around her own (unanimous) opinion in Midkiff, and attempted to do so by saying that a taking would serve a public purpose if the taking itself alleviates a harm. That makes sense for cases like Berman, where the taking itself is a key component of the "urban renewal" plans, but it doesn't make sense in Midkiff. The harm in Midkiff was not that the land was blighted, but that it was owned by a small handful of people, and the taking in Midkiff only achieved its goal of stabilizing the land market once that land was given to other private parties (in Midkiff, residential leaseholders). That transfer to private parties is what O'Connor criticized in Kelo, but it's also exactly what she approved of in Midkiff! There's no way the framework she proposed in her Kelo opinion would produce the result that she (and eight other justices) viewed as relatively uncontroversial.

I imagine the Dimension of Intellectual Hell consists of intellectuals being read their previous public statements/judgments and then being required to rule on new cases without contradicting what they had done previously.
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Person Man
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« Reply #5 on: August 26, 2021, 12:07:50 PM »

The Roberts Court has a wood for corruption. We know this.
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Tintrlvr
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« Reply #6 on: August 26, 2021, 12:16:52 PM »

Kelo was definitely rightly decided within the bounds of the Constitution, and those who think otherwise are simply wrong adn trying to reach a desired policy result on the basis of the Constitution alone. It may be that actions such as those permitted by Kelo are bad policy or unpopular, but the Takings Clause is not about what constitutes good policy, and there's no question that some bad policies are permitted by the Takings Clause.
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