Justice O’Connor’s beautiful dissent in the Kelo case–where the 5-justice majority eviscerated the “public use” requirement of the Fifth Amendment’s Takings Clause and stripped everyday Americans of the right to live in their own homes–ought to be a focus of attention in the upcoming confirmation battle. The three justices who joined O’Connor’s dissent were Rehnquist, Scalia, and Thomas. Among the five justices in the majority was Justice Kennedy.
It follows that anyone who cares about the basic right of Americans to own their own homes–and not to be displaced from their lifelong communities at the whim of petty bureaucrats–ought to insist on justices who are more respectful of the express economic rights embodied in the Constitution (or, in the inappropriate political parlance, more “conservative”) than Justice Kennedy–justices, in other words, like Rehnquist, Scalia, and Thomas. It’s great that O’Connor was right in Kelo, but it would be foolish to believe that anyone who shares her broader approach to jurisprudential issues would be.