Bench Memos

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Re: Kelo’s Anniversary


I agree with Jonathan Adler about last year’s Kelo ruling—that it was correctly decided, that it can hardly be excoriated as “judicial activism,” and that steps taken by the political branches and the states to rein in abuses of the eminent domain power are sufficient to address any probems that ensue from the decision.  The states and their peoples have always had the ability to restrain their public authorities without any need of supervision by the U.S. Supreme Court on this front.  Congress and the president can do their part as well.  In the year since Kelo, much has been done.

All this progress is acknowledged by Scott Bullock (who argued Kelo for the Institute for Justice) in today’s Wall Street Journal (subscription required).  Bullock notes that overwhelming majorities, when polled, are “opposed to the Kelo decision”—or more precisely, to its effects, since underwhelming minorities have actually thought about the constitutional arguments.  “Legislatures in 25 states have responded to public outcry by restricting eminent domain in a variety of ways,” he writes.  Sounds like a defeat in the Court has been followed by victory in the places that really matter when the Court permits (rather than forbids) an exercise of political power—in the precincts of political power itself.

But Bullock hasn’t given up on hoping for the Court to reverse what is now a half-century’s worth of precedents.  He says he is “confident that one day” the Court will change its mind, “consigning [Kelo] to the same fate as other discredited decisions like Plessy v. Ferguson (which upheld ‘separate but equal’ treatment of the races) and Korematsu v. U.S. (which upheld the internment of Japanese-Americans during World War II).”

Those comparisons are more than a little hyperbolic.  But there’s also something a little dodgy about describing Plessy and Korematsu as “discredited.”  When the Court explicitly changes its mind about a precedent, the prior ruling is “overruled,” not merely “discredited.”  And while a good argument can be made that Plessy has been overruled (though some think it really hasn’t been, given the Court’s refusal to adopt a “colorblind” rule), Korematsu remains in place, never having been overruled by the Court.

Oh but surely, some readers will say, Korematsu has been repudiated and “discredited,” just as Bullock says.  Yes indeed it has been . . . by the political branches, which have seen to it, by their responsiveness to public opinion, that no occasion has arisen for the Court squarely to reconsider the precedent.  And that’s just the point that Scott Bullock and his anti-Kelo colleagues don’t seem to get: put not your faith in judges, and ask not of them what can and should be more properly undertaken in the political process.

Tags: Franck


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