Supreme Court Justice Stephen Breyer on Kelo vs. New London

Last week he spoke at the Brookings Institute. I asked him the following question, which in nicely recorded on the transcript. It took me a while to figure out how to ask the question. My first thoughts were to be intellectual about it, but then realized that the best way was just state my reaction to the decision, i.e., “What the $&@*$#!,” but in a polite way:

QUESTION: With the eminent domain case of Kelo v. New London, when it came out I was just shocked and I couldn’t imagine how anyone could vote with the majority because it seemed a clear case of violation of property rights. If I recall correctly, you voted in with the majority that it was a case of eminent domain and that the City of New London could take the property owners’ property without their consent. I just wanted to know where you were coming from on that.

JUSTICE BREYER: The best way to see where I’m coming from that won’t satisfy you is you have to read the opinions, and maybe you have. But the particular provision at issue in this case is called the Just Compensation Clause and it says no property can be taken for public use without just compensation. And in the particular case, the problem was how do we decide whether the property here is or is not being taken for public use when it has certain apparently public purposes but some of it is being given to private people? Everybody agrees nobody could do it without just compensation, and the question looking at the particular case is here what’s the mix? Is it for a public use? Is it not for a public use? Suppose it were taken to build an Olympic Village. Some of that property might go for a private hot dog stand. Maybe it shouldn’t be. Maybe it should be, but I’m giving you the issue in the case.

Then if you go read the opinions, you will see some people thought that this is on balance of public use and, therefore, you can take it provided you give just compensation, and it’s called the Compensation Clause. And others thought, no, there
isn’t enough public use in this.

And that’s why I say if you read the briefs in so many of these cases that appear, well, once you see the newspaper it was obviously right or it was obviously right. I have to admit that in cases in which I have dissented, in my heart, though I tended to think how right I am, in my heart I had to admit there is much to be said for the other side, wrong though it may be. [Laughter.]

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