Kelo consternation and confusion

I've read a couple of today's decisions and will have some thoughts soon, but here's the belated post about last week's Kelo v New London that I left hanging.

Reactions to the Kelo v New London decision have been blooming all over the web, including speculation on the Volokh Conspiracy that O'Connor's dissent was originally the majority and a response on SCOTUSblog. I suppose it's possible, but it seems to me that if O'Connor's opinion had begun as a majority, she had to sever a good deal of it.

Outside the professional courtwatchers, folks at Metafilter have been venting about the decision to the tune of 150 comments. Many of the posts seem frustrated or perplexed at the position of Kelo author Stevens and Clinton appointees Ginsburg and Breyer siding with New London against the petitioners, since the case is framed as a conflict between state-assisted corporate development and the sanctity of the individual landowner. However, the respondent here is a Connecticut municipality, not Pfizer, and the question at issue is the extent of government power to respond to public economic problems (ostensibly) rather than the general preference for corporate over individual ownership of property. The different ways of framing the decision are interesting, however, and I'll return to it in a second after giving my own reaction to the decision.

Steven's opinion is more sanguine than I would like about the implications of local government economic development decisions. The dissents are interesting, because Thomas, who is undoubtedly further away from Stevens on the interpretive questions, appears less upset personally about the decision than O'Connor. Thomas' dissent is heavily burdened by qualified and contentious assertions about the "original meaning" of the Public Use standard (and boldly quotes Morton Horwitz, whose research demonstrates the exact opposite of the legal development Thomas is alleging), but O'Connor is angry over what she perceives as a reasonable position (her majority for Midkiff) being distorted to bring an end to the security of private property.

Kennedy's concurrence raises several interesting issues, both as a piece of legal handiwork and in more pragmatic terms. As an opinion, it's typical Kennedy: strike a note of moderation, acknowledge some legitimacy to dissenting concerns, and leave the question of standards open. He even cites his own discretionary opinion in Apfel in favor of some narrowly applicable shift in presumption under Takings review. He seems to be proposing either a more robust form of rationality review in economic rights cases, or possibly a wider spectrum of review standards than the three typical of civil rights jurisprudence.

In terms of legal development, Kennedy's opinion is interesting because, as a 5-4 decision, his membership in the majority opinion coalition is necessary to imbue it with precedential value. Much like Vieth v Jubelirer from last term, Kennedy knows how to get mileage out of his fifth-vote appearances. From a vote-counting perspective, that clearly means that in order to get 5 votes for your taking, a city needs to satisfy Kennedy's criteria. I don't think it means that Kennedy's concurrence has formal precedential value, but who really cares? It's bound to be more widely cited than a concurrence in a 7-2 or 9-0 case.

To return to the framing question, respondents on Metafilter and elsewhere see this as an individual rights question, while Stevens and many (but not all) observers frame the question as one of judicial intervention into economic policymaking. Judges, the post-New Deal consensus holds, are ill-equipped to second-guess the choices governments make in economic affairs, including their exercise of eminent domain authority. Kennedy's opinion attempts to thread the needle, recognizing the necessity of deference to policymakers, but cognizant of the enumerated individual rights asserted in cases like this (that being private transfers for development purposes.) For O'Connor, "cases like this" deserve no deference.

For that matter, you could see this case from another perspective entirely. Rather than seeing the Stevens/Breyer/Ginsburg and Rehnquist/Scalia/Thomas bloc votes as curious, try figuring out O'Connor's position. She's often a states-rights voter, but in this case she strongly opposes the exercise of a traditional state authority (eminent domain) set against an individual rights claim. Whether her efforts to distinguish Kelo from Midkiff really make sense or not, the focus in her opinion is decidedly on the individual rights dimension and not so much on the state power versus federal prohibition dimension.

Kennedy's position is another punt to the lower courts to devise criteria for distinguishing suspicious private transfers by the government from legitimate ones. At times like this, he strikes me as a Richard Posner-style pragmatist, but with decidedly different sensibilities. I can imagine another avenue, though, as an alternative to searching judicial inquiries into the motives and public goals of private transfers via takings. In such private transfer cases, courts could inquire not so much (or merely) into the likelihood of suspicious or corrupt private favoritism as into the degree of state authorization for such activity. Stevens assures us that states can place limits on local governments' exercise of eminent domain, but there's no evidence that states will exercise that responsibility. One way for courts to potentially goad states into policing the takings of their county and municipal creations is to require general or explicit state level authorization for takings intended for private transfer and development. That standard would certainly be satisfied by Midkiff, but I'm not sure for Kelo. It would also increase the cost to developers of using state power to seize land, since they'd have to pay off the local and state governments. It would also potentially impose political costs on state actors for the activities of local governments, leading to greater direction from legislatures.

Ah well, it's a thought.