At Volokh Conspiracy, Ilya Somin: Justice Stevens Admits Error in the Kelo Case—but also Doubles Down on the Bottom Line. From the introduction:
In his recently published memoir, The Making of a Justice: My First Ninety Four Years, retired Supreme Court Justice John Paul Stevens includes an extensive discussion of his majority opinion in Kelo v. City of New London (2005). The Takings Clause of the Fifth Amendment indicates that the government may only take private property for a "public use." In Kelo, a narrow 5-4 Supreme Court majority ruled that almost any potential public benefit qualifies as "public use," thereby permitting the City of New London to take fifteen residential properties for purposes of transfer to a new private owner in order to increase "economic development."
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In his memoir, Stevens fortrightly acknowledges one [error]: serious misinterpretation of relevant precedent. Stevens' majority opinion in Kelo relies heavily on the claim that its very broad definition of "public use" is backed by "more than a century" of precedent. That assertion is false. The nineteenth and early-twentieth-century cases cited by Justice Stevens as support for extreme judicial deference under the Public Use Clause in fact addressed public use challenges under the "Lochner-era" doctrine of "substantive" due process applying the Due Process Clause of the Fourteenth Amendment. During that period, the Supreme Court had not yet recognized that the Fifth Amendment applied against state governments. Thus, the only way for property owners to challenge a state or local government taking in federal court was under the Due Process Clause.
And from later on:
Despite this notable concession, Stevens continues to believe that Kelo was rightly decided. But his new rationale for the decision is completely different from the one offered in his majority opinion for the Court. He now argues that the Takings Clause of the Fifth Amendment does not constrain the purposes for which the government can condemn property, at all.
This rationale (previously advanced by a few legal scholars) is actually much more dubious than the broad definition of "public use" Stevens advocated in the Kelo decision. Among other things, it really is at odds with not just one century of judicial precedent, but two. While there is longstanding disagreement between advocates of broad and narrow definitions of public use, two centuries of state and federal judicial precedent hold that "public use" imposes at least some constraint on the reasons for which government may condemn private property.
RELATED: At Law & Liberty, John McGinnis reviews Justice Stevens' book: Stevens’ Jurisprudence of Facts Is No Substitute for One of Principle. In conclusion:
In many ways, Stevens embodied both the qualities and blinds spots of one who came of age in Second World War. He possessed the devotion to duty that characterized his generation. But he also had an overconfidence that the consensus forged in World War II would carry on indefinitely. That consensus encouraged him to think that most everyone would regard the facts as he did, permitting him to believe that a jurisprudence of facts could substitute for a jurisprudence of principle.
Posted at 6:52 AM