I suppose it's better than a hand gesture, but Justice Scalia's latest off-the-bench, off-the-cuff pronouncement is distinctly erratic.
Speaking Tuesday at the Chicago-Kent College of Law, Scalia had some acerbic remarks about the Court's 2005 decision in Kelo v. New London.
According to The Chicago Sun-Times, here's what Scalia said:
I do not think that the Kelo opinion is long for this world. My court has, by my lights, made many mistakes of law during its distinguished two centuries of existence. But it has made very few mistakes of political judgment, of estimating how far... it could stretch beyond the text of the constitution without provoking overwhelming public criticism and resistance. Dred Scott was one mistake of that sort. Roe v. Wade was another ... And Kelo, I think, was a third.
It is a remarkable comparison -- one that frankly makes me wonder whether Scalia's entire critique of Warren and Burger Court jurisprudence is nothing but policy-preference-based hypocrisy. Dred Scott v. Sandford gave us the rule (corrected by the Thirteenth Amendment) that a person of African descent, even if born in the United States, was not and could never be a citizen of the United States -- even if Congress sought to do so under its power to establish "an uniform rule of naturalization." In his infamous opinion, Chief Justice Roger B. Taney wrote that the Framers of the Constitution, though they never actually said so, considered black people "beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect." This intemperate decision outraged the country, dominated the Lincoln-Douglas debates, and measurably hastened the onset of Civil War.
Is Kelo really that bad? (Before the commenters go batsputum below, let me note that I have elsewhere criticized Roe v. Wade for going too far.)
Kelo, for readers without a long memory for conservative outrage, held that the City of New London, Conn., could use its state-granted eminent domain power to force the owner of a private home to sell the house (at a market price) to the city. The land it stood on was to be used as part of a city-planned development that would center around a research facility to be built by Pfizer; the development would include residential, retail, and private leased office space. (The city hoped, vainly as it turned out, that the proposed development would be a jobs magnet.) Suzette Kelo, a nurse, had resisted the sale of her "little pink house," the first she'd ever owned; when the city proved unrelenting, she sued, arguing that the use of public domain violated the Fifth Amendment. That Amendment provides (among other limits on government), "nor shall private property be taken for public use, without just compensation." Kelo contended that the proposed development, which would be used by private companies, did not qualify as "public use."
A bitterly split Court held that economic development projects like the New London plan did qualify as "public use." (Justice Scalia was among the dissenters, though he did not write his own opinion.) Both sides agreed that the government could not take one person's property for the sole purpose of giving it to someone it liked better (a practice much beloved of kings). "[T]he City would no doubt be forbidden from taking petitioners' land for the purpose of conferring a private benefit on a particular private party," Justice Stevens wrote for the majority. But the New London plan was part of a "'carefully considered' development plan," the land was being taken for a "public purpose," and thus did not violate the Constitution. Justice O'Connor, in dissent, direly warned that "[t]he specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."
Kelo stirred public outrage, but hardly at the same level as Dred Scott. To begin with, taking --and paying for -- a person's house is really hardly to be compared with seizing a person, confiscating their labor for life with no compensation at all, whipping and branding them at will, and selling their children on the open market. Slavery was a monstrous crime; only a mind of extreme vulgarity could seriously compare it to overenthusiastic eminent domain.
The furor over Kelo was also less intense because, unlike Dred Scott, the decision was easily fixed. Within three years, no fewer than 42 states had reacted by limiting their own power of eminent domain to prevent seizures like the one that dispossessed Suzette Kelo.
That's the first odd thing that's odd about Scalia's comparison. He is always talking about how questions of rights should be left to the democratic process rather than the courts. In my own least favorite of his decisions, Employment Division v. Smith, he wrote cheerfully that the state of Oregon could entirely outlaw the use of peyote, even for religious purposes, with no bother about the pesky Free Exercise Clause. "Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process," he wrote. Minority religions might be outlawed by "neutral and generally applicable laws," but that was an "unavoidable consequence of democratic government."
The second strange thing is that Kelo was an opinion upholding "state's rights." Eminent domain is not a power "given" states by the federal Constitution; it's pre-existing power, a classic example of what the Tenth Amendment reserves to states. The majority said that state governments could, within broad limits, set the boundaries of their own power of eminent domain. State's rights is a concept Scalia has doughtily championed in decisions like Printz v. United States -- though, of course, that decision concerned a state's right not to regulate guns. Scalia has even publicly criticized the Constitution itself -- specifically the Seventeenth Amendment -- for impinging on "state's rights."
Finally, in Kelo, the dissenters' position was the "activist" one, elevating the power of those whom Scalia elsewhere has called "unelected judges" over that of the legislatures and the people. By refusing to get involved, the majority threw the issue back to the states, which promptly resolved it for themselves. Had the dissenters' position prevailed, the courts would have become inextricably embroiled in eminent domain cases across the country, with federal judges consulting their own personal philosophies about the public v. private spheres to decide whether a given taking was for a "public use." That's the sort of entanglement Scalia usually professes to dislike.
You don't have to believe the development plan in Kelo was a good idea to believe that the scope of eminent domain is usually best resolved by politics. Property owners, by definition, are not powerless -- witness the clout they displayed after Kelo was decided. If a state decides democratically that it wants to retain the eminent-domain power for economic development, the argument for court intervention is, in Scalian terms, extraordinarily weak.
But that's only true if Scalia's announced philosophy embodies a sincere commitment to his view of "restraint." If, on the other hand, an entirely counterfactual Justice secretly believed that the courts should not be restrained at all, but should be enforcers of right-wing, libertarian values, then I suppose that hypothetical Justice might think Kelo, a small, readily reparable limit on property rights, was, like Dred Scott, a complete denial of human dignity. That hypothetical Justice might also be signaling to legal activists around the country that the time is propitious for aggressive litigation to establish new constitutional rights to protection of property.
Of course, it could also be that Scalia was simply indulging his penchant for bad-boy overstatement, hoping for attention. If so, maybe articles like this one will settle him down.