The court wisely resisted writing such a rule. That leaves the job of defining the scope of condemnation actions to state and local government decision-makers, who must face public wrath if they take condemnation powers too far.
Yeah. So we can just throw out that whole constitution thing now, 'cause the government is going to protect our rights. It always works that way, right?
While we're at it, let's just overrule that whole pesky first amendment thing. After all, if the government tries to take away our free speech, they'll have to face public wrath. And isn't that enough?
UPDATE
Todd Zywicki from the Volokh Conspiracy also rebuts this point, with an equal amount of sarcasm:
I thought the purpose of the Bill of Rights was to create rights that would be protected from the government, so that we wouldn't have to rely on the honor system of the government to do the right thing, but had rights that would be enforced. Why not apply the honor system to constitutional protections for speech, religion, and criminal procedure? We can't trust the government when it comes to allowing a prayer at a high-school graduation, but we can when it comes to taking an old-woman's house in which she raised her family? It would sure make the war on terror easier if the government could just arrest anyone in the name of the public good as long as it cut an undercompensatory check for the inconvenience afterwards.
The potential for abuse in this ruling is obvious, and the fact that governments cannot be trusted to do the right thing is exactly the reason why the Michigan Supreme Court reversed Poletown earlier this year. And Justice Thomas hits the nail on the head when he observes that it won't be (and historically hasn't been) the rich and powerful who are finding their homes condemned and given to corporations, Wal-Mart, or simply someone who will build a bigger house and promise to pay more property taxes (as Will Wilkinson observes, "That is, if you have something somebody richer than you wants, watch out.").
Rather than laundering it through the government, why not just skip the government as middleman and let Donald Trump take whatever he wants whenver he wants it, and just write a check for it? Then we could skip the pretense that this is anything but rent-seeking.
Meanwhile, the discussion rages on over at SCOTUSBlog, primarily about what test is now going to apply, since it appears rational basis is out. Another interesting side note:Eric Claeys and Orin Kerr debate the theory that O'Connor's opinion started out as a majority, but she lost Justice Kennedy somewhere along the way.
Was it her turn to watch him?
UPDATE UPDATE
Instapundit and Kerry Country both point out this could be a tool for cities to get rid of undesirable businesses: strip bars, unpopular churches, hunting reserves, newspapers . . .
Instapundit also makes this comment:
I'm still getting a lot of angry email, and as noted below, the decision seems to have angered people on both left and right. It's true, as Eugene Volokh noted on Hugh Hewitt's show last night, that it was only a modest extension of existing law. But I think that existing law has moved, by gradual increments, to a point where it's out of step with the Constitution and with public sentiment about what's just. Sometimes a Supreme Court decision, even one that doesn't make new law, can bring people's attention to a situation and drive efforts to change it.
Some people are comparing this with Dred Scott, but that's a bit over the top. A better analogy might be the Bowers v. Hardwick decision, which didn't make new law, but which led to a sea-change in public attitudes. One difference is that Bowers was consistent with the law going all the way back, while the 20th Century takings doctrines were not.
He's also got extensive roundups here and here. TalkLeft also comes down against it.
The Newsday article on the case linked by State 29 has photos of the properties and a poll - when I took a look, it had 94.8 percent against the decision.
Moira Breen from Progressive Reaction has one solution.
Ted Frank from the Point of Law Forum sees it as judicial expansion:
One factor I haven't seen anyone comment upon: the decision is not just a refusal to limit governmental power, but, beyond that, is an affirmative expansion of judicial power. Justice Kennedy's concurrence creates a brand-new test: "There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause." This test is so amorphous to be effectively standardless, requiring case-by-case adjudication, thus effectively transforming the judicial branch into a super-legislature with the power to veto condemnations engaged in by the executive branch—after extensive litigation over whether the favoritism is "permissible" or "impermissible," of course. Like many other cases in the last decade, the Supreme Court's decision vests additional political power in itself.
Please tell me this isn't another "I know it when I see it" test. I know it is. But please tell me anyway.
(For those of you who aren't lawyers, Justice Stewar's famous concurrence:
It is possible to read the Court's opinion in Roth v. United States and Alberts v. California, 354 U.S. 476 , in a variety of ways. In saying this, I imply no criticism of the Court, which in those cases was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court's decisions since Roth and Alberts, 1 that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. 2 I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
Due to their inability to precisely define the term, the Court got to spend the next several years watching porn flicks.)
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