Will Kelo Break Bowers' "Most Wrong" Record?
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It is not new news that the Institute for Justice is petitioning the Supreme Court to rehear the private-for-private eminent domain travesty case, Kelo v. New London.
The most recent analysis comes from Pepperdine professor and FindLaw columnist Douglas Kmiec:
Which is not to say that Kelo won't be overturned — someday.
And given how utterly wrong, and embarrassing, and newsworthy, this case is, one wonders how long it will take for Kelo to be overturned. Will "someday" come sooner, or later?
This, plus the Roberts confirmation, got me thinking about overturning precedent generally. It doesn't happen a lot, at least not in monumental cases. On the other hand, it seems like the time it takes to overturn major precedent is shrinking.
Consider the three examples I can come up with (I'm sure full-time legal scholars can identify more):
--Plessy v. Ferguson, 163 U.S. 537 (1896), overturned by Brown v. Board of Education, 347 U.S. 483 (1954): 58 years.
--Lochner v. New York, 198 U.S. 45 (1905), overturned by West Coast Hotel v. Parrish, 300 U.S. 379 (1937), 32 years.
--Bowers v. Hardwick, 478 U.S. 186 (1986), overturned by Lawrence v. Texas, 539 US 558 (2003), 17 years.
As unforgivable and deserving of reversal Bowers was, the wrong-headedness of Kelo is orders of magnitude worse.
Three data points do not make a reliable trend, but I wonder whether, as mass media becomes ever more omnipresent and the Court becomes ever less insulated from the rest of society, the justices tend to realize ever more quickly when they just plain blow it.
Stay tuned...
Hat tip to Crime & Federalism.
POST SCRIPT #1: In case anyone's confused, I do not think Lochner was wrongly decided or should have been overturned. What competent consenting adults do in the privacy of their ownbedroom human resources office is their own business.
POST SCRIPT #2: By way of comparison, it took the Supreme Court only five years to overturn a major provision of the Constitution. Of course, some people are under the impression that the Court can't do that, or at least isn't supposed to do that. Go figure.
POST SCRIPT #3: Professor Larry Solum highlights some new scholarly work on the overturning of precedent that concludes "the doctrine of stare decisis has only a slight influence on the justices and even then only in the least salient of the Court's decisions. ... [T]hroughout the Court's history, individual justices have developed a position and then stuck to it." I'm not sure how that plays into calls to overturn Kelo.
The most recent analysis comes from Pepperdine professor and FindLaw columnist Douglas Kmiec:
A majority of the Court must agree that rehearing is warranted, and it must do so at the urging of a Justice who concurred in the judgment — not one who dissented. In this instance, that could be any member of the majority (Stevens, Souter, Breyer, Ginsburg, or Kennedy).Whatever. The Court will not grant a rehearing.
But if anyone is going to catch this "Hail Mary" pass, it's Justice Kennedy.
Kennedy concurred separately in the Kelo decision, indicating that he understood the majority to allow for a more demanding standard of review to apply to a subset of economic development takings where there is "a plausible accusation of impermissible favoritism to private parties." That accusation, said Kennedy, "should [be] treat[ed] ... as a serious one and [the trial court should] review the record to see if it has merit."
In fairness, Justice Kennedy supposed this had been done in Kelo, but a close look at the record suggests it had not.
Which is not to say that Kelo won't be overturned — someday.
And given how utterly wrong, and embarrassing, and newsworthy, this case is, one wonders how long it will take for Kelo to be overturned. Will "someday" come sooner, or later?
This, plus the Roberts confirmation, got me thinking about overturning precedent generally. It doesn't happen a lot, at least not in monumental cases. On the other hand, it seems like the time it takes to overturn major precedent is shrinking.
Consider the three examples I can come up with (I'm sure full-time legal scholars can identify more):
--Plessy v. Ferguson, 163 U.S. 537 (1896), overturned by Brown v. Board of Education, 347 U.S. 483 (1954): 58 years.
--Lochner v. New York, 198 U.S. 45 (1905), overturned by West Coast Hotel v. Parrish, 300 U.S. 379 (1937), 32 years.
--Bowers v. Hardwick, 478 U.S. 186 (1986), overturned by Lawrence v. Texas, 539 US 558 (2003), 17 years.
As unforgivable and deserving of reversal Bowers was, the wrong-headedness of Kelo is orders of magnitude worse.
Three data points do not make a reliable trend, but I wonder whether, as mass media becomes ever more omnipresent and the Court becomes ever less insulated from the rest of society, the justices tend to realize ever more quickly when they just plain blow it.
Stay tuned...
Hat tip to Crime & Federalism.
POST SCRIPT #1: In case anyone's confused, I do not think Lochner was wrongly decided or should have been overturned. What competent consenting adults do in the privacy of their own
POST SCRIPT #2: By way of comparison, it took the Supreme Court only five years to overturn a major provision of the Constitution. Of course, some people are under the impression that the Court can't do that, or at least isn't supposed to do that. Go figure.
POST SCRIPT #3: Professor Larry Solum highlights some new scholarly work on the overturning of precedent that concludes "the doctrine of stare decisis has only a slight influence on the justices and even then only in the least salient of the Court's decisions. ... [T]hroughout the Court's history, individual justices have developed a position and then stuck to it." I'm not sure how that plays into calls to overturn Kelo.
Posted by KipEsquire on
6 August 2005
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