The Volokh Conspiracy
[Eugene Volokh, June 23, 2005 at 1:46pm] Trackbacks
Kelo Opinions:

Setting aside who's right, I thought the majority and the two dissents were really very well-crafted -- readable and persuasive arguments in favor of the positions they were defending. The same was true of all the opinions in Raich v. Ashcroft; fine examples of legal writing.

All Related Posts (on one page) | Some Related Posts:

  1. Legislative Responses to Kelo:
  2. Epstein on Kelo:
  3. Government Responses to Kelo:...
  4. Kelo Discussion at SCOTUSblog:
  5. Kelo Opinions:
  6. Takings and Privatization:
  7. Big Government for Its Own Sake:
Greedy Clerk (mail):
You thought the majority's opinion was well done? David Bernstein says that the majority opinion simply revealed itself as showing that "liberals" like big government just for big government's sake. I think his "analysis" is spot-on. (Somehow I suspect David B didn't read the majority opinion.)
6.23.2005 2:21pm
Bas Braams (mail):
Can someone explain to this non-lawyer how it can be that such a very basic issue about the very old concept of eminent domain can be new before the Supreme Court? Wouldn't there have been hundreds, maybe thousands of instances in the US over the past 220 years in which some commercial interest asks a local or state government for an application of power of eminent domain? It sounds like a huge issue to me, but how can it have failed to reach the Supreme Court until now?
6.23.2005 3:40pm
West (mail):
Really great writing - what a wonderful result. I am personally slightly more worried about which opinion was CORRECT.
6.23.2005 3:41pm
Brett Bellmore (mail):
Can someone explain to this non-lawyer how it can be that such a very basic issue about the very old concept of eminent domain can be new before the Supreme Court?

Some outrages are so outrageous, it can take a couple of centuries for someone to work up the nerve to perpetrate them, and then actually try to defend them in court.
6.23.2005 3:50pm
byrd (mail):
Certainly, I would think that if growing your own medical marijuana for your own use is interstate commerce (because there is pot in interstate commerce that the grower is not buying, thereby weakening the illicit drug trade), then increasing the tax base, even by $0.01 is a public benefit.

Logically, I think the court is on firm ground, but they are so deep in the world of de minimus that one has to wonder if there is any limit at all to the reach of government today. And why don't they try so hard to find applications for the constitution's protections? Why is the exploration and creativity so often in the service of expanding government powers?
6.23.2005 4:04pm
Clayton E. Cramer (mail) (www):
"Wouldn't there have been hundreds, maybe thousands of instances in the US over the past 220 years in which some commercial interest asks a local or state government for an application of power of eminent domain?"

There are. But they were largely decided at a time when the government's job was to benefit large and politically connected corporations at the expense of little people. Read the precedents that they cite--and remember, these are the liberals taking the side of private corporations against the rights of the individual. This is no surprise; limiting the power of the government to be corrupt would limits its power to do good.
6.23.2005 4:08pm
Robert F:
Replace "legal writing" with "sophistry" and you're spot on.
6.23.2005 4:10pm
Jim Rhoads (mail):
From what I have read about these opinions today, it appears that this case means more grist for the litigators' mill. I wonder if reading the opinions will change this old litigator's mind.
6.23.2005 4:21pm
Kevin Baker (mail) (www):
Great writing. Wonderful.

There was never any doubt on as to the outcome. SCOTUS wasn't going to overturn Midkiff. Even O'Connor held up Midkiff as good law.

But Clayton is absolutely correct. "Limiting the power of government to be corrupt would limit its power to do good." Thus the Left of the Court was REQUIRED to rule as it did.
6.23.2005 4:45pm
gbrown (mail):
Justice Steven's observation that "hypothetical" problems will be addressed later will be scant comfort to the client when I inform him/her of the likelihood that the Court will accept cert. in his/her case.
6.23.2005 4:59pm
aslanfan (mail):
Kennedy's clerk mispelled de minimis (last paragraph). Other than that, I agree that the opinions are exceptionally well-crafted.
6.23.2005 5:00pm
aslanfan (mail):
and I misspelled misspelled
6.23.2005 5:02pm
Trenchard Gordon:
Complimenting this opinion for its writing is like complimenting Lee Harvey Oswald for being such a good shot.
6.23.2005 5:14pm
Brett Bellmore (mail):
What really burns me is the knowlege that, unless this subject returns to the Court within months at the outside, the ink will dry, and Scalia will vote to uphold the precident when we finally DO get a crack at it. We don't just need to move ONE vote to overturn this atrocity, we need to move two, to compensate for Scalia's phobia about "overturning settled expectations".
6.23.2005 5:35pm
Anderson (mail) (www):
Well, Oswald WAS a really good shot, apparently. Or just lucky.

Brett, if settled expectations don't matter to Scalia where Roe is concerned, don't worry about them in Kelo. He's just a teensy bit opportunistic on that one.
6.23.2005 6:26pm
James Kolbert (mail):
Much of the blogging on Kelo strikes me as terribly court-centered. The Supreme Court, on the other hand, appears to have taken seriously the idea of a Constitution outside of the Courts (see, e.g., James E. Fleming's scholarship). Instead of viewing Raich and Kelo through the lens of a court-lover and decrying the Court's deference to legislatures as an institution, one could view it through the lens of a legislature-lover and applaud the Court for respecting its co-equal branch, the Legislature. The Court here perhaps is presuming that legislators, even on the local level, will bear in mind their obligation to act constitutionally and take action only if it is warranted. In those cases where legislators overstep their bounds, well, judicial review is always available to strike down those overzealous imprecations, but there is no reason to constitutionalize overbroad doctrine when we can take things one case at a time ("judicial minimalism") and save our counter-majoritarian powers for those cases where it counts (avoiding "self-inflicted wounds"). In that light, I suppose, Kelo is just a case of ordrinary rational-basis review (Williams Lee Optical) and Raich is simply a federal preemption case. The fact that Stevens was in the majority is rather irrelevant on this view, because Stevens "won" in cases where black-letter law was affirmed and conservative activism was not furthered, which is not a gain for liberal activists, especially given how old Stevens and O'Connor are. Unless you think both of them can make it until Hillary is elected President, these decisions could be viewed as mere placeholders for the impending JohnRobertization of constitutional law.

As for the Court refusing certiorari on Takings Cases, Rehnquist GAVE TAKINGS LAWYERS AN INSTRUCTION MANUAL FOR HOW TO GET CERT IN FUTURE TAKINGS CASES IN HIS CONCURRENCE IN SAN REMO HOTEL.

I REPEAT: REHNQUIST GAVE TAKINGS LAWYERS A HOW-TO-MANUAL OF HOW TO GET TO THE SUPREME COURT WITH A TAKINGS CASE FROM HERE ON IN WITH HIS CONCURRENCE IN SAN REMO HOTEL.
6.23.2005 8:27pm
James Kolbert (mail):
Much of the blogging on Kelo strikes me as terribly court-centered. The Supreme Court, on the other hand, appears to have taken seriously the idea of a Constitution outside of the Courts (see, e.g., James E. Fleming's scholarship). Instead of viewing Raich and Kelo through the lens of a court-lover and decrying the Court's deference to legislatures as an institution, one could view it through the lens of a legislature-lover and applaud the Court for respecting its co-equal branch, the Legislature. The Court here perhaps is presuming that legislators, even on the local level, will bear in mind their obligation to act constitutionally and take action only if it is warranted. In those cases where legislators overstep their bounds, well, judicial review is always available to strike down those overzealous imprecations, but there is no reason to constitutionalize overbroad doctrine when we can take things one case at a time ("judicial minimalism") and save our counter-majoritarian powers for those cases where it counts (avoiding "self-inflicted wounds"). In that light, I suppose, Kelo is just a case of ordrinary rational-basis review (Williams Lee Optical) and Raich is simply a federal preemption case. The fact that Stevens was in the majority is rather irrelevant on this view, because Stevens "won" in cases where black-letter law was affirmed and conservative activism was not furthered, which is not a gain for liberal activists, especially given how old Stevens and O'Connor are. Unless you think both of them can make it until Hillary is elected President, these decisions could be viewed as mere placeholders for the impending JohnRobertization of constitutional law.

As for the Court refusing certiorari on Takings Cases, Rehnquist GAVE TAKINGS LAWYERS AN INSTRUCTION MANUAL FOR HOW TO GET CERT IN FUTURE TAKINGS CASES IN HIS CONCURRENCE IN SAN REMO HOTEL.

I REPEAT: REHNQUIST GAVE TAKINGS LAWYERS A HOW-TO-MANUAL OF HOW TO GET TO THE SUPREME COURT WITH A TAKINGS CASE FROM HERE ON IN WITH HIS CONCURRENCE IN SAN REMO HOTEL.
6.23.2005 8:27pm
Craig C. (mail):
There was never any doubt on as to the outcome. SCOTUS wasn't going to overturn Midkiff. Even O'Connor held up Midkiff as good law.

O'Connor wrote Midkiff, so she had to stick by it.
6.24.2005 3:31am
Ciarand Denlane (mail) (www):
Not wishing to be accused of civility by (e.g., Supremacy Claus) and because I don't have a strong opinion on the craftsmanship of these particular opinions in any event, I won't comment on these opinions specifically. But it has struck me in recent years that legal and many other kinds of writing have been getting better over the years. There are, of course, still many illiterates or near illiterates. And the distinctive voice of a great writer of an earlier age is still better than that of any but comparably great writers of today. But if scientists today do stand on the shoulders of giants, prior ages' scientists, why can't writers? For the range of writing done by very good to excellent writers in fields where clear and persuasive writing is at a premium, we have been given many examples now of what does and does not work. For any given writer, some of those examples, at least, are likely to be written with sensibility or voice similar enough to his or her own natural voice and professional purposes that they can be mined for good ideas. The good ideas spread, and writing gets better.
6.26.2005 7:09am

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