June 23, 2005

By a 5-4 vote, the Supreme Court upheld New London's condemnation of private homes for a private development project. The Institute for Justice has a press release and there's a discussion going on SCOTUSblog, and you can expect interesting commentary at The Volokh Conspiracy.

One factor I haven't seen anyone comment upon: the decision is not just a refusal to limit governmental power, but, beyond that, is an affirmative expansion of judicial power. Justice Kennedy's concurrence creates a brand-new test: "There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause." This test is so amorphous to be effectively standardless, requiring case-by-case adjudication, thus effectively transforming the judicial branch into a super-legislature with the power to veto condemnations engaged in by the executive branch—after extensive litigation over whether the favoritism is "permissible" or "impermissible," of course. Like many other cases in the last decade, the Supreme Court's decision vests additional political power in itself.