Case Won on Appeal
(to Public)
By ADAM LIPTAK,
NYTimes on the Web, July 30, 2006
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Mel Evans/Associated Press
BACKLASH
Jose Gonzales was among the protesters at the New Jersey State House
opposing the use of eminent domain spurred by a United States
Supreme Court decision. |
IN some ways, it was a modest
decision. A year ago, the United States Supreme Court ruled that a city in
Connecticut could use the power of eminent domain to make room for private
development. The decision simply applied existing law and deferred to the
judgments of local officials.
But the outcome was a revolt.
The decision provoked outrage from Democrats and Republicans, liberals and
libertarians, and everyone betwixt and between. Dozens of state
legislatures considered bills to protect private property from government
seizure, and many passed new legislation; Justice John Paul Stevens, the author
of the decision, issued something like an apology; a campaign was started to use
eminent domain to seize the home of another justice, David H. Souter; and, on
Wednesday, a ruling from the Ohio Supreme Court adopted the analysis of the
dissenters in last year’s decision to reject an effort to oust the residents of
a Cincinnati suburb.
Sometimes, Supreme Court cases have a way of highlighting issues that had been
absent from the national agenda, and the cases can provoke reactions that have a
far greater impact than the ruling itself.
“I always tell my students,” said Douglas Laycock, a law professor at the
University of Texas, “that one of the best things you can do is lose a case in
the Supreme Court.”
Dana Berliner, a lawyer with the Institute for Justice, the libertarian legal
group that represented the homeowners in both the Connecticut and Ohio cases,
said the United States Supreme Court decision, Kelo v. New London, gave
rise to “a tidal wave of outrage.”
“The decision brought to light this incredible rift between what lawyers and
cities thought was the law and what the American people thought was the law,”
Ms. Berliner said. “This is certainly the situation of losing the battle
and winning the war.”
In many ways, then, the decision by the Supreme Court to hear a case can be as
important as the ultimate ruling. “The role of the courts in shaping
public opinion is their ability to elevate issues on the public agenda,” said
Nathaniel Persily, a law professor at the University of Pennsylvania.
Issues like school prayer, flag burning, school desegregation, gay rights and
abortion rights all gained prominence on the political landscape because of
court decisions. The cases that tend to provoke the biggest popular
reaction are those in which justices seem to be out of touch with ordinary
people, said Michael J. Klarman, a law professor at the University of Virginia.
“Almost all of the instances of backlash,” Professor Klarman said, “are
conservative, populist reactions to decisions that seem elitist.”
Kelo, which concerned, after all, the sanctity of the home, was a prime
example. “You got a very strong, visceral response,” said Richard Epstein,
a law professor at the University of Chicago, “because this is something on
which everyone is a constitutional expert.”
Yet Kelo was in one sense a modest, rather than activist, decision; the
majority did little more that say it hesitated to second-guess urban planning
decisions. It did not endorse New London’s actions but merely ruled that
the Constitution did not forbid them, and it invited state courts and
legislatures to fashion different rules.
“It seems almost meek,” Professor Klarman said. “People who are critical
of Kelo are people who want judicial activism. They are the same people
who criticize judicial activism in abortion or same-sex marriage cases.”
Some argue that the Kelo decision has provoked an overreaction.
They point, for instance, to a California ballot initiative called the “Protect
Our Homes Act.” Promoted as a reaction to Kelo, it would bar not only the
condemnation of property for economic development but also require compensation
for some regulations that affect property values.
“There is no doubt that Kelo has inspired a level of reaction that denies
power that a rational community would like a city council to have,” said Douglas
W. Kmiec, a law professor at Pepperdine University who opposes Kelo but
expresses doubts about the initiative.
In most unpopular decisions, the Supreme Court typically has the last word,
barring a constitutional amendment. But that was not true in Kelo,
or in a few other cases. In 1986, for instance, the court held that the
Air Force could bar officers from wearing skullcaps. The next year,
Congress passed a law allowing members of the armed services to wear “items of
religious apparel” so long as they are “neat and conservative.”
Similarly, in 1972, the Supreme Court ruled that the First Amendment did not
protect reporters from grand jury subpoenas seeking their confidential sources.
Partly as a result, legislatures and courts created shield laws in almost every
state, though there remains little protection in most federal cases.
Ms. Berliner, of the Institute for Justice, sounded practically giddy on Friday
as she reflected on the year since Kelo. “They won that particular case,”
she said of her adversaries, “and they lost the entire country.”
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