By Dahlia Lithwick
I've witnessed some weird moments at oral arguments over the years, but I'm thinking absolutely nothing could compare with the sight I beheld today: In the midst of argument in Kelo v. New London — a critically important case about the government's right to condemn private land and give it to private developers — the lawyer for the city of New London, Conn., pulls out an actual prop. In response to a query from Sandra Day O'Connor as to whether there's a concrete development plan for what would replace the handful of homes being condemned, Wesley W. Horton hauls out a big poster board with the whole proposed community laid out. Condos here, marina here, yank out this crappy little Victorian house and the health club will go there, he enthuses.
My heart begins to pound. I want in on this deal. And O'Connor looks like she does, too.
With the exception of a yellow pad, I have never seen a visual aid of any sort used at oral argument. Advocates really should use them more — diagram all four prongs of the Lemon test; color-code the three levels of constitutional scrutiny. After all, these justices aren't getting any younger and with Chief Justice William H. Rehnquist out again today, and his usual replacement, John Paul Stevens, absent because of a canceled flight, we are down to just seven this morning. It's starting to look a bit like The Bachelor, Week 5.
But to start at the start: The Fifth Amendment of the U.S. Constitution allows local government to use "eminent domain" powers to condemn private property. The only requirement is that owners are given "just compensation" and that the land in question go to a "public use."
In the working-class neighborhood of Fort Trumbull, Conn., the local government has some big plans. Not a monorail, but adjacent to and complementing a brand new $300 million research facility for the pharmaceutical giant, Pfizer, there would be condos, health clubs, a luxury hotel, shops, and other assorted mega-stuff. Most of the folks in town agreed to sell, but seven families, owning 15 homes, refused. They like their crumbly Victorians. So when the state tried to condemn their property, they sought injunctions.
Traditionally, the "public use" requirement in eminent domain cases allowed the local government to condemn property to build railroads, or bridges, or highways. But in a 1954 case, Berman v. Parker, the Supreme Court found that "public use" could include condemning blighted neighborhoods to build better ones. Fort Trumbull isn't blighted, but since the Michigan Supreme Court decided its famous Poletown case in 1981 — razing hundreds of homes to build a GM plant — many jurisdictions have insisted that increased tax revenues and the prospect of new jobs was "public use" enough to justify nabbing land that subsequently became Costcos, shopping malls, and fancy office buildings. New York used eminent domain to improve Times Square and build the World Trade Center. The Connecticut Supreme Court agreed with New London that seizing homes for purposes of private economic development was permissible. The homeowners appealed.
Scott G. Bullock represents the homeowners, and his first words to the court strike terror in the heart of anyone who looks into their backyard and sees the ghostly outline of the Target housewares section looming over the trees: "Every home, church, and corner store would produce more tax revenue if it was turned into a shopping mall," he says. There can be no limit to what the state can condemn if the only requirement is that the proposed project improve the tax base.
Justice Ruth Bader Ginsburg points out that the city is depressed; what's wrong with efforts to "build it up and get more jobs?" Bullock says the condemned land in Berman was "blighted," but this land is merely depressed. O'Connor, never one to tip her hand too early at argument, asks Bullock "What standard should we use to second-guess the legislature?" Bullock insists that once condemned land is passed off to private developers, it's no longer going to "public use." Justice Anthony Kennedy interrupts to observe that "everybody knew private developers were the beneficiaries" when slums were condemned in Berman.
Bullock replies that the Berman taking was justified since it was removing blight. Kennedy retorts that in five years New London will be blighted instead of just depressed, and would eminent domain be acceptable then? Bullock says the entire public benefit of a project cannot "depend on private parties making a profit." Kennedy and David Souter both observe that this is precisely what happened when land was condemned for railroads.
O'Connor again seeks articulation of the test these homeowners are proposing, and Bullock supplies her with: "The government cannot take property just so the new owners can put it to better use." He wants the court to implement two requirements in eminent domain cases: some proof that the proposed future use is truly likely to happen, and his backup test — that there be "minimum standards" showing actual benefits to taxpayers.
Souter concedes that there could be truly bad faith condemnation of land — say, when the mayor, a Democrat, condemns Person A's land and gives it to Person B, also a Democrat. But Souter sees no evidence of bad faith in New London. They are legitimately attempting to revive a declining economy. O'Connor adds: "Do you really want the courts to be in the business of judging whether a hospital will be successful or a road well-constructed?"
Wesley Horton represents the city of New London, and even before his to-scale chart comes out, it's clear that his enthusiasm for this development knows no bounds. He's a hopper, as well as a pointer, and he tends to chuckle at his own jokes. But he makes the point that this condemnation is no different than any of the innumerable ones that were deemed constitutionally sound in the past.
Justice Antonin Scalia asks what difference it makes that New London is depressed. What if a city acknowledged that it wasn't doing badly, but just wanted to condemn land to attract new industry? He describes Horton's position as: "You can always take from A and give to B, so long as B is richer." And O'Connor offers this concrete example: What if there's a Motel 6 but the city thinks a Ritz-Carlton will generate more taxes? Is that OK?
Yes, says Horton.
"So you can always take from A and give to B if B pays more taxes?" asks Scalia.
"If they are significantly more taxes," says Horton
"But that will always happen. Unless it's a firehouse or a school," protests Kennedy.
Here is where O'Connor asks about the specific plans for the homes before the court, and Horton pulls out his Pareto-optimal town-planning schematic, and everyone on the bench briefly contemplates buying a new condo in Fort Trumbull, Conn.
Justice Stephen Breyer asks why the courts cannot just demand some "reasonableness" standard for proposed "public use" projects. Horton says that standard is too high. Breyer points out that this is a "specific constitutional provision designed to protect minorities from the actions of majorities," and maybe a higher standard is warranted.
"We're paying for it!" Horton exclaims, noting that no one is taking anything from these minorities.
"But you're taking it from someone who doesn't want to sell. She doesn't want your money," retorts Scalia.
And Kennedy muses that "it seems ironic that 100 percent of the premium for this new development goes to the developer and not the property owner" (who is entitled only to the "fair market value" of her home and not a share in the marina's future revenues). Breyer agrees that the real problem here isn't the "public use" issue but rather whether this represents just compensation.
It doesn't look like the good folks of Fort Trumbull will garner many votes today at all — save for that of Justice Scalia, who channels the many libertarian amici in this case when he repeats that you can constitutionally condemn land and give it to a private entity — a railroad or public utility. "But you can't give it to a private corporation just because it might increase taxes."
Horton replies that giving the people of New London jobs is just as important as giving them a railroad.
Horton then concludes: "I have just four words this court should consider … but I'm not going to say them because I see my red light is on" (which amounts to 15 additional words). When Bullock stands for his rebuttal, Kennedy asks whether he knows what the four words were that Horton might have used.
Bullock does not. So a new Fort Trumbull gym membership to the first Frayster who can win this case (for either side) in just four words. Let me start you off:
"But we're libertarians, stupid."
"What would Rehnquist say?"
"You can't stop progress."
"Grande or Venti, sir?"