There’s lots of blogging about Kelo both here and elsewhere today, so I thought I would just add three quick points:
1. The opinions in Kelo remind me a lot of the opinions in Gonzales v. Raich. The Court has once again reaffirmed the academic common wisdom — in Raich, that the commerce clause power is virtually limitless, and in Kelo, that almost everything is a public use. Both cases involved the same type of line-drawing challenge, in which the Constitution requires a line to be drawn but it’s pretty hard to draw such a line in practice. (It’s difficult to distinguish interstate commerce from intrastate commerce and commerce from non-commerce, and it’s difficult to distinguish public use from private use.) In both cases, the Stevens majority opinion recognized that a line existed in theory, but put it so far out of the way that it won’t bother anyone.
2. Is it just me, or does Justice O’Connor’s dissent have the feel of an opinion that started out as a majority draft? This is just speculation, and perhaps idiosyncratic speculation at that, but I wonder if she had a majority at conference and lost Justice Kennedy along the way.
3. The next time someone insists that conservatives like Justice Thomas will do anything to defend corporate interests against the powerless — and particularly against powerless racial minorities — feel free to point them to Justice Thomas’s eloquent dissenting opinion in Kelo. So much for that idea.
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