Abuse of Imminent Domain

Supreme Court

In a course I’m enrolled in at the American Public University we were asked to discuss the relevancy of a notorious Supreme Court case, that of Kelo v. The City of New London, a case about imminent domain, to the charge that activist judges have an adverse impact on the American political system.  For a little background on the court case, there is a very brief summary posted at Heritage.Org’s blog, “The Foundry” where, on March 30, 2009, writer Conn Carroll posted the following—

“On June 23, 2005, the United States Supreme Court handed down a 5-4 decision affirming the state of Connecticut’s right to evict U.S. citizens from their homes for purposes of “economic development.” In Kelo v. City of New London, plaintiff Suzette Kelo, who had recently bought her dream home on the bank of the Thames River, sued to stop New London from using its eminent domain power to condemn and destroy her home. New London wanted to destroy Kelo’s home so that Pfizer, Inc. could build $300 million research facility.
“The government got its way. 78 homes have been destroyed. But how is that government-led economic development going? The CATO Institute has an update:”

The CATO link takes you to a You Tube video produced by the CATO Institute, a six-minute summary of the Kelo v. The City of New London decision.   I thought the Heritage blog post and the accompanying CATO Institute video might be of interest to the class.  Suzette Kelo appears in the video and there are snippets of contemporary news casts related to the story.  Here are a couple of quotes from the video …

• “The most universally despised Supreme Court decision, perhaps in its history.”
• “The most despised Supreme Court decision in many, many years.”
• “Destined to be overturned.”

Justice O'Connor

My thought, after reading about the case and Justice O’Connor’s dissenting opinion, and doing some admittedly superficial research on the subject of judicial activism, is that there is probably as much “relevancy” in the Kelo case, in terms of judicial activism, as one wishes to see.  It’s like beauty in that sense, only in this case “relevancy” is in the eyes of the beholder, and this is how I tried to explain it.

Thomas Sowell

I started with Thomas Sowell, a senior fellow at the Hoover Institution at Stanford University, a towering figure in academia.  Much of his writing discusses “social issues and intellectual controversies. (1).  In his 1995 book, The Vision of the Anointed, Sowell writes that “the general process of stretching and twisting the written law—and especially the Constitution—to reach results desired by judges has been called “judicial activism.”  However, “like most phrases,” he says, “… the term ‘judicial activism’ is itself a subject to varying interpretations and distortions.” (2) 

Mark Levin

To provide a little contrast to Sowell, I turned next to Mark Levin, conservative commentator, constitutional lawyer, and president of the LandMark Legal Foundation, who has also written at some length about judicial activism.  In his 2005 book, “Men in Black: How the Supreme Court is Destroying America, Levin writes that a judicial activist is one who “construes the Constitution broadly and rejects some of its provisions outright (or gives them superficial acknowledgement) of they interfere with the desired outcome.  In essence, activist judges make, rather than interpret, the law.  They substitute their will for the judgment of deliberative bodies.  They see their role as “doing justice” or “righting wrongs” when, in fact, they’re doing neither.   As to the consequences of judicial activism, Levin cites four famous cases—the Dred Scott decision; Plessy v. Ferguson; Korematsu v. United States; and Roe v. Wade; among others. (3)

One might say of the person Levin describes that he or she “has an agenda.”  It is as if this person, because of ideology or whatever reason, is out to accomplish some end using what the general public calls judicial activism as the means to that end.  One of the first things that come to mind is FDR’s “court packing” scheme in the 1930s.  The idea was that one way to get the decisions he needed was to simply increase the size of the Supreme Court thereby giving him the opportunity put more like-minded justices on the bench.

Sowell, on the other hand, sees something else, not an agenda but an attitude, a mindset, or what he terms “the vision of the anointed;” the ‘anointed’ being the intelligentsia—in which Supreme Court justices would certainly be members.  This “vision,” he describes it, is one that is “prevailing among the intellectual and political elite of our time.” (4)  His book explores the “kind of world [that] exists inside the minds of a self-anointed elite,” but also considers carefully “how that world affects the world of reality.” (5)

*****

Noting that in different eras, different ‘visions’ compete for preeminence, in a given age and among a given people, a given vision can usually be said to ‘prevail.’  Sowell describes the common characteristics of a prevailing vision (6)—

• “Assertions of great danger to the whole society, a danger to which the masses of people are oblivious.”  (The people of New London, they said, were ignorant of the great economic benefit that would come to them via this new industrial development for which the government must seize and destroy 78 private residences).

• “An urgent need for action to avert impending catastrophe.”  (This was implied, in the Kelo case, with respect to the township of New London if it did not act.  It is also the searing characteristic of the 2008 bank “crisis” which led to big government’s “necessary intervention” in the form of Bush’s troubled asset relief package—TARP and Obama’s stimulus package).

• “A need for government to drastically curtail the dangerous behavior of the many, in response to the prescient conclusions of the few.” (In Kelo, the majority of the Supremes saw steadfast belief in the constitutionally reinforced principle of the rights of private property owners as a dangerous behavior).

• “A disdainful dismissal of arguments to the contrary as either uninformed, irresponsible, or motivated by unworthy purposes.”  (… which is pretty much how Justice O’Connor’s dissenting opinion in the Kelo case was treated). 

Sowell points out is that in our time, this type of ‘vision’ prevails among “a relatively small group of articulate people [who, because of “the rise of mass media, mass politics, and massive government”] have great leverage in determining the course taken by a whole society.” (7)  Justice O’Connor, in her dissent, seems to take Sowell’s point of view over Levin’s.  She never mentions “activist justices,” or accuses anyone in the majority of having an “agenda.”  But she does ridicule the prevailing attitude—their vision, calling the majority opinion “an abdication of our responsibility.”

As to the case’s “relevancy” to the charge of the adverse impact caused by activist judges on the American political system, it is relevant in terms of the adversity of its impact.  But I don’t consider the Kelo case an act of judicial activism.  It simply reflected the prevailing [terribly misguided] “vision” of the court—a very small group of articulate people exercising great leverage upon society and thinking the whole time they were doing what’s best for us.

***** 

Notes.

1.  Thomas Sowell, The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy (New York:  Basic Books, 1995), from the short bio of Dr. Sowell that appears on the inside back cover, which also mentions Dr. Sowell’s long association with “Cornell, UCLA, Amherst, and other academic institutions and think tanks.”

2.  Ibid., 226.

3.  Mark Levin, Men in Black:  How the Supreme Court is Destroying America (Washington, D. C: Regnery Publishing, Inc., 2005), 13-14.

4.  Sowell, 2.

5.  Ibid., x.

6.  Ibid., ix-x.

7. Ibid., 5.

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