The case went all the way to the Supreme Court.
And in a 5-to-4 decision, the liberal justices, joined by moderate Anthony Kennedy, sided with the government officials, ruling that they could force Americans out of their homes and transfer ownership of the land to a private corporation.
The 2005 decision sparked a popular backlash. As the conservative Justice Sandra Day O’Connor observed in her dissenting opinion, “the 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.” Another conservative justice, Clarence Thomas, observed that “though citizens are safe from the government in their homes, the homes themselves are not.”
That same year, the court’s decision was praised by a billionaire real-estate developer with a personal interest in eminent domain. (He once tried to have the government force a woman from her home against her will so he could build a limousine parking lot.) He told Fox News of the ruling, “I happen to agree with it 100 percent.”
His name: Donald Trump, the same man a faction of conservatives is trying to elect because they insist, against all evidence, that his judicial nominations are to be trusted.
This is folly.
“Donald Trump’s view of eminent domain is not just immoral and un-American,” John Nolte wrote at Breitbart.com, one of the most pro-Trump publications in America, “it exposes a very troubling mindset that contradicts the populist appeal that has helped him get as far as he has in the Republican primary. People need to ask themselves if they want a second president in a row who’s so eager to use the fascist power of government to crush the individual in furtherance of corporate interests.”
And eminent domain is just one of many reasons to reject the proposition that it makes sense to vote Trump because his Supreme Court nominations will protect the Constitution, or the conservative or libertarian agenda, or that they will thwart the left. A posture that amounts to “trust him, he’ll come through” is an absurd folly put forward by pundits who would not lend Trump money if they ran a bank. They see, in that case, that he would fleece his creditors as soon as he had an incentive to do so. Yet they fail to see that were Trump elected, he would have no incentive to advance an originalist legal philosophy and every incentive to do the opposite.
Their failure of imagination is best fleshed out by Ilya Somin, the libertarian legal scholar, who opined at the Washington Post about what Trump judges are likely to look like:
If Trump wins and his agenda is seen as a political success, he will have the opportunity to move the GOP further in a National Front-like direction. And a Trumpist/National Front party will have little use for limited government-originalist judicial philosophy. To the contrary, federalism, the separation of powers, and many individual rights limitations on government power would be an impediment to its agenda. A Trumpist GOP would, over time, seek to appoint judges in line with its priorities.
We don’t yet know what the full contours of a Trumpist judicial philosophy might be. But they are likely to include sweeping executive power (so the party’s Great Leader will not be hamstrung by constraints on his power), a narrow view of freedom of speech (so he can intimidate critics with libel suits and administrative harassment), tight restrictions on civil liberties (making it easier to, among other things, round up and deport many millions of undocumented immigrants), and weakening constitutional property rights (so that the government can have a free in transferring property to its cronies in the business community).
This really isn’t difficult: Multiple policies that Trump has proposed violate the Constitution. Yet his apologists ask us to assume that this unprincipled admirer of authoritarian strongman Putin will nominate judges who will reliably rein in the government!