Topic: Property Rights Decision - Kelo v. the City of New London
Senator: Kohl
Date: SEPTEMBER 14, 2005
Contents
KOHL: Judge Roberts, when we met a few weeks ago in my office, we discussed the Supreme Courts recent property rights decision.
In that case, Kelo v. the City of New London, the court found it permissible under the Constitution for a city to seize private homes against the wishes of their owner so that a large pharmaceutical company could build a private industrial park and a research facility.
A total of 15 homes were condemned, including a home lived in by an 87-year-old woman for her entire life, a home that her family had owned for over 100 years.
KOHL: Many people, including a majority, I believe, of people in my state, as well as myself, were quite disturbed by this ruling which appears to place much private property at risk by greatly expanding the eminent domain powers of local government.
We discussed this when you were in my office, and you told me that you were, quote, "surprised," by the decision. So could you expand on it a bit this afternoon and explain why you were surprised?
ROBERTS: I did tell you that was my initial reaction. I remember hearing about the decision driving, actually, back from a judicial conference with another judge.
And we all learn in law school the first, one of the first cases you study is called Calder against Bull. It has a basic proposition: The government can't take property from A and give it to B.
When I read the decision, I understood what the majority's position was: the difficulty of drawing a line between things that are obviously public use like a railroad, a road, things that are traditionally the subject of the exercise of eminent domain, and other activities that are not as clearly within that range.
Of course, Justice O'Connor in her dissent thought the line could be drawn between whether it was available to the public or not, and that certainly was available. The majority did say that it was not rule on the starkest example, in other words just determining to take the property from A to B because you think B could make better use of it.
The issue arose, as you noted in your question, in the context of an urban renewal redevelopment project, and that may be limited to that context or may not.
I do know there's been extensive legislative reaction to the decision. I know a number of states have passed laws already saying we do not authorize the use of the power of eminent domain to take for a use that's going to be from one private owner to another. And that's certainly an appropriate reaction to a court's decision in this area.
What the court is saying, what the majority is saying, is because of the difficulty of drawing a line, this issue is really left up to the legislature. And if the legislature wants to draw the line in a particular place, it has that authority.
ROBERTS: But it certainly is a decision that was closely divided, 5-4, and it has gotten a lot of legislative reaction.
The point I would only make is perhaps it's a good example of the fact that legislators have a responsibility to protect the rights of the people just as much as courts.
And one way they can protect the rights of the people in this area, if they think it appropriate, is to restrict themselves in saying, we will not use the imminent domain power to the broadest extent that the Supreme Court has said we are authorized to do.
KOHL: Did I understand your opinion on whether or not that case was correctly decided, or are you...
ROBERTS: Again, that's -- particularly since it's an area they do leave -- specifically leave open the question about whether it applies outside of a redevelopment project, that's an issue that could come before the court. It's not one I feel appropriate to comment on.
KOHL: It would or would not surprise you if we'd not heard the last of that?
ROBERTS: It's certainly one of those areas that could come before the court again, even in its present form. I know the author of the majority opinion said it was an area where he, as a personal policy matter, wouldn't have exercised that authority.
But, of course, the issue there was the legal issue, not policy preferences. It could come before the court again, yes.
KOHL: You will have a decision to make if it does rise up to that level. Is it possible that your decision, along with three other justices, might be to put that on the docket?
ROBERTS: That would be one of the decisions that, in the exercise of the cert process, as they call it, short for the certiorari decision, and that would certainly be an issue that could come before the court.
And they already have, of course, four dissenters who may be anxious to revisit it -- or not. I don't know. I don't want to presume how they would view it on an ongoing basis.
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