The Volokh Conspiracy

Quite the liberal hack, that Toobin, what with his reaching out to conservative/libertarian sites to solicit criticisms of his work to guide his revisions.

P.S. Mr. Toobin, if you're reading, I'm the guy who asked you to elaborate on your Clinton-appointing-Obama prediction at the NY Times event last weekend. With due respect, I did not find your answer very helpful; I was already aware that you had spoken to Mr. Obama about the possibility in the past and were unconvinced by his disclaimer of interest, because you've shared that anecdote a number of times in the past, but I still don't understand how Obama would remain a political rival to President Clinton if she is elected in November, or what incentive she might have to get him out of the way, as it were, by nominating him to the Court.

How did a book with so many glaring errors, and with such an idiotic bias (I am a Democrat and admit it is wildly biased) make it onto the Top 5 lists for Time and the NYT? I guess I just answered my own question...

GP, it also made it onto the Economist's 2007 best book list. Perhaps, it is still an open question . . .

There is an error of Yiddish usage on page 244, though it is not Toobin's:

According to [Sandra Day O'Connor's] biographer, Joan Biskupic, O'Connor boasted about her matchmaking skills, claiming she had once been known as the "Yenta of Paradise Valley."

A yenta, however, is not a matchmaker, but rather a busybody. A matchmaker is a shadkhen. O'Connor no doubt picked up her Yiddish from Fiddler on the Roof, where the village matchmaker was named Yenta -- but that was a play on words. Of course, a shadkhen was likely to be a yenta (how else to do business?), but plenty of yentas were not matchmakers.

It is certianly to his credit that he listens to criticism and is willing to change.

Perhaps in the context of a narrative regarding the public intersection of the arcane and the mundane that are Supreme Court decisions, it is reasonable to expect that on the few occasions that this mixture reaches critical mass amongst the masses there was not necessarily a scientific way to predict that outcome.

Nonetheless, it is unfortunate that Toobin has made such a simplistic caricture of this unique phenomenon as surrounding Kelo, and perhaps salutary that he remains interested in whether other factors were at work.

While I was far less politically mature and perceptive at the time of the Roe decision, I believe that Kelo signficantly eclipsed the benchmark that Roe set in terms of its entry into public perceptions about the court and the court's fidelity to a the publicly understood organic guarantees.

Roe, after all, pitted two very serious paradigms of individual rights against one another. Indeed, the explicitly libertarian camp, as small as it is, is split along this same divide. For partisans unconcerned with this abstract distinction, Roe may indeed have been viewed by both sides as placing government decision-making superior to their understandings of human rights in light of the human condition. But the long ranging battle over Roe never seemed to reach beyond this partisanship in terms of public opprobrium with regards to the decision itself.

Kelo, however, was clearly understood to pit government power captured by faction against individual rights. Would that public choice theory in this arena was so widely studied by the public as to mean that the concept of "government failure" was as quick to their lips as the concept of "market failure". But the truth is anything but this. High Courtiers such as Toobin, and likely those he chronicles, simply missed the extent to which the competing interests in this case were transferable into the lives and experience of the public.

No amount of repeating a message, as IJ surely did in terms of beating the drum regarding abuse of eminent domain prior to the Kelo case is going to make a generally apathetic and uninterested public become students of eminent domain.

I think by now it might have been fair use to put up pages 306-308 of The Nine. Having not read them, but taking Gideon Kanner's characterization as a starting point, I think the 'surprise' at the vitrolic public discontent with the Kelo decision would strike some -- perhaps most -- of the nine and Toobin about the same way, which is to say that the ear turned to the public has been tinned.

Perhaps he was a prisoner of the idea expressed in the prequel to this thread by Steve that:

"The reason no one expected high drama is that virtually every observer expected the decision to come out the way it did, since it was the result indicated by precedent. The fact that it ended up as a bitterly contested 5-4 decision, complete with scathing dissent, was an important part of what propelled it into the headlines."

I find this thought remarkably incomplete. The Connecticut Supreme Court had sided with the statists. One had at least to wonder, if federal precedent in this area were so settled, what the point of taking the case was. I, as many observers, felt that the court had taken the case in order to draw a line between the fungible idea of remedying blight or constructing public facilities, and economic development generally. Thus no reversal of fortune as Thomas or I might advocate with regard to Berman, but I expected the style of outcome we got, but had hoped it might be 5-4 the other way.

I attended a forum about 6 months after the decision at Brown University that had one of the principle lawyers from each side discussing the case. The auditorium that seats about 200 was overflowing with people in the aisles. You can hold a meeting of the openly libertarian and conservative students at Brown in couple phone booths -- thats up from one phone booth at the turn of the century. The several students who organized the forum were of mixed political ancestry. They did so with the assistance of one of the more libertarian-minded or classically liberal figures in the faculty, John Tomasi, but it was their idea and they did all the footwork and publicity themselves. The audience, to a man(I can't handle 'to a person', I mean this in sense of taxonomy not gender), castigated the counsel for New London. These kids were loaded for bear. Some of it was actual application of their own mental faculties -- a slight improving trend at this academy in this regard -- and some coming from the large left of center echos in opposition to Kelo's outcome.

I've been attending forums at the university for years and I've never seen anything like it. I personally felt that this case and this area of law and policy was unusual in clearly pitting statist vs. libertarian ideals, as opposed to many cases and policy questions that perceputally split along the conservative/progressive divide. But quality argumentation on agency capture crossing into areas of regulation for instance has found completely infertile ground amongst the same audience.

If there were any purportedly conservative or right-leaing bootstrapping off this case it would have been to wratchet in an understanding of the predicament posed by inverse condemnation. If you think Suzette Kelo had it tough fighting eminent domain, how ought you to feel if the government bought all the land around her and then refused to grant her access to her property and paid her nothing? Or regulated her home into effective disutility with some clever overlap of zoning, environmental and 'safety' regulations.

Sadly, in my mind, IJ went out of their way to make sure this didn't happen to somehow confuse their case. I would submit for those who are such great fans of precedent in this arena that these issues were hopelessly and properly conflated in Hawaii v. Midkiff, 467 US 229 at 240 when Justice O'Connor wrote:

"The "public use" requirement is thus coterminous with the scope of a sovereign's police powers."

If this were recognized as precedent -- and it certainly seems to me to represent a central holding of the case -- then police power defenses against inverse condemnation ought to have evaporated by now. Little wonder that there is so much effort to maintain procedural bars that make property rights second class and the clever focus on making the latest progressive pronouncements on the environment into common law nuisance arguments.

Thank you Gideon for your spirited defense of property rights. Kelo is proof that people care about them innately, but inverse condemnation remains an ink blot for most members of the public, until it bites them they don't see it right in front of them.

If it were widely understood that the same racial and class underpinnings are shot through the debates over zoning and environmental regulations, similar and healthy skepticism might emerge, e.g. Ambler v. Euclid, 297 F. 307 ,1924., N.D. Ohio, E.D., at 312:

Buchanan v. Warley, 245 U.S. 60, 38 Sup.Ct. 16, 62 L.Ed. 149, L.R.A. 1918C, 210, Ann. Cas. 1918A, 1201, in which an ordinance of the city of Louisville, held by the state Supreme Court to be valid and within the legislative power delegated to the city, districting and restricting residential blocks so that the white and colored races should be segregated, was held to be a violation of the Fourteenth Amendment and void. It seems to me that no candid mind can deny that more and stronger reasons exist, having a real and substantial *313 relation to the public peace, supporting such an ordinance than can be urged under any aspect of the police power to support the present ordinance as applied to plaintiff's property. And no gift of second sight is required to foresee that if this Kentucky statute had been sustained, its provisions would have spread from city to city throughout the length and breadth of the land. And it is equally apparent that the next step in the exercise of this police power would be to apply similar restrictions for the purpose of segregating in like manner various groups of newly arrived immigrants. The blighting of property values and the congesting of population, whenever the colored or certain foreign races invade a residential section, are so well known as to be within the judicial cognizance."

And of course Sutherland's apologia for the Supreme Court in Euclid V. Amber, 272 US 365, that sadly commanded not the spirited explication of dissent that Kelo did although it is noted that "Mr. Justice VAN DEVANTER, Mr. Justice McREYNOLDS, and Mr. Justice BUTLER dissent":

This question involves the validity of what is really the crux of the more recent zoning legislation, namely, the creation and maintenance of residential districts, from which business and trade of every sort, including hotels and apartment houses, are excluded.
...

With particular reference to apartment houses, it is pointed out that the development of detached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that in such sections very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district. Moreover, the coming of one apartment house is followed by others, interfering by their height and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bringing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from **121 their safety and depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities-until, finally, the residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed.

The frankness of Westerhaven's discourse and the pretext of Sutherland's reversal provide as glaring a policy contrast as the Kelo case and I would hope that the opprobrium that happily followed the decision would broaden its aim. In the meantime, I can only hope that the proposal to take Souter's home as a memorial to lost liberty comes to fruition.