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April 4, 2010

In profile of Justice Stevens, another reflection by author of Kelo opinion that it was settled law but lousy policy

Atlantic Yards Report

One flaw in a 3/22/10 New Yorker profile of soon-to-retire Supreme Court Justice John Paul Stevens, headlined After Stevens: What will the Supreme Court be like without its liberal leader?, was a failure to mention Stevens's controversial opinion in the 2005 Kelo v. New London eminent domain case, which prompted most states (though not New York) to pass laws tightening the practice of eminent domain.

Today's New York Times profile of Stevens, headlined At 89, Stevens Contemplates Law, and How to Leave It, partially remedies the situation:

Often, he added, the law requires a certain result, as in the court’s 2005 decision in Kelo v. City of New London, which allowed local governments to use the power of eminent domain to take private property for business development.

“The Kelo case was one of my most unpopular opinions, and that was one where I thought the law really was pretty well settled on the particular point,” he said.

Asked if he would have answered the question presented in the case differently had he instead been a legislator, Justice Stevens said probably yes.

“One of the nice things about this job is that you don’t have to make those decisions,” he added. “Very often you think, in this particular spot I don’t have to be deciding the really hard case about what should be done. Which is one of the reasons why the function is really quite different from what people often assume.”
...

The question, then, is why legislators have not acted more prudently.

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Posted by eric at April 4, 2010 10:28 PM