Say Anything Blog

Supreme Court Justice Stevens, who wrote the majority opinion on the controversial Kelo case, is now saying that the outcome of that case and one other was "unwise" but that his decision was proper with regard to the law.

WASHINGTON, Aug. 24 - It is not every day that a Supreme Court justice calls his own decisions unwise. But with unusual candor, Justice John Paul Stevens did that last week in a speech in which he explored the gap that sometimes lies between a judge's desire and duty.

Addressing a bar association meeting in Las Vegas, Justice Stevens dissected several of the recent term's decisions, including his own majority opinions in two of the term's most prominent cases. The outcomes were "unwise," he said, but "in each I was convinced that the law compelled a result that I would have opposed if I were a legislator."

In one, the eminent domain case that became the term's most controversial decision, he said that his majority opinion that upheld the government's "taking" of private homes for a commercial development in New London, Conn., brought about a result "entirely divorced from my judgment concerning the wisdom of the program" that was under constitutional attack.

His own view, Justice Stevens told the Clark County Bar Association, was that "the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials." But he said that the planned development fit the definition of "public use" that, in his view, the Constitution permitted for the exercise of eminent domain.

Justice Stevens said he also regretted having to rule in favor of the federal government's ability to enforce its narcotics laws and thus trump California's medical marijuana initiative. "I have no hesitation in telling you that I agree with the policy choice made by the millions of California voters," he said. But given the broader stakes for the power of Congress to regulate commerce, he added, "our duty to uphold the application of the federal statute was pellucidly clear."

All due respect, but Stevens is off his rocker. I don't know what person, with even a reasonable knowledge of the law, would say that the government's power of eminent domain applies in this case. The government, before, was restrained by the requirement that land taken with eminent domain powers be used for public projects like schools and roads. Kelo, unfortunately, expanded the definition of public projects to include things like shopping malls.

So if your city council decides that the "public" is best served by a nice, new Home Depot where your house used to be then your only option is to accept the amount of money they decide your property is worth and move on.

Which is a pretty sad situation.