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In his ongoing series of interviews and speeches, retired Supreme Court Justice John Paul Stevens continues to shed interesting light on his career and colleagues, breaking the mold of former Court members who usually watch quietly from the sidelines. Some of Stevens’ recent observations have been drawn from his new book Five Chiefs. But in a Nov. 16 speech at the University of Alabama School of Law, Stevens offered a new and lengthy defense of his 2005 decision in Kelo v. City of New London, which he readily acknowledged was “the most unpopular opinion that I wrote during my 34-year tenure on the Supreme Court.” In his 35-page speech, the text of which was recently posted on the Supreme Court Web site, Stevens was unapologetic about the decision, which upheld the constitutionality of an urban redevelopment plan in Connecticut that included eminent domain takings of private homes to make way for commercial and non-commercial uses. The 5-4 ruling provoked a strong national backlash against eminent domain practices that took property from one private owner and gave it to another mainly for the higher revenue the new project might produce. But the criticism that prompted Stevens to speak out now about the ruling was almost certainly a recent comment by Justice Antonin Scalia that placed Kelo in the same category as the Scott v. Sandford and Roe v. Wade decisions. All three, said Scalia, were cases in which the Court misjudged “how far it could stretch beyond the text of the Constitution without provoking overwhelming public criticism and resistance.” The Chicago Sun-Times reported on Scalia’s Oct. 18 comments, which were made before the Chicago-Kent College of Law. Scalia also predicted that the Kelo decision is not “long for this world.” Stevens clearly took umbrage at the remark, which he quoted in his speech. Stevens struck back, asserting that Kelo was a model of judicial restraint because it left to the political branches the job of deciding how and when to use eminent domain, within reason. The text of the Constitution’s Fifth Amendment, Stevens insisted, places no limit on state power to take property, except the requirement for just compensation to the former owner. Stevens said that it was the dissenters – including Scalia – who wanted to stretch the Constitution to reach a desired result. If the decision was flawed, Stevens said, its only error was that it “may have failed to engage in judicial activism by expanding the doctrine of substantive due process to create a new rule limiting the power of sovereign states to condemn private homes — a rule which no one asked the Court to create.” Stevens continued, “Instead, Kelo adhered to the doctrine of judicial restraint, which allows state legislatures broad latitude in making economic policy decisions in their respective jurisdictions, and creates a strong presumption against a construction of the Fourteenth Amendment’s Due Process Clause that would make federal judges the final arbiters of policy questions best answered by the voters’ elected representatives.” Stevens noted that justices who were willing to invoke substantive due process under the Fourteenth Amendment to support the gun owners in the recent Second Amendment case of McDonald v. Chicago are the same justices who usually oppose expansion of that doctrine. The McDonald ruling, Stevens said, was “consistent” with the dissents in Kelo. Retaliating against Scalia’s grouping of the Kelo decision with Dred Scott, Stevens made his own unfavorable comparison between the Kelo dissents and the Lochner v. New York ruling of 1905, which invoked substantive due process to strike down a law regulating bakery hours. “I am not at all sure that the plan that we approved [in Kelo] was wise policy, but I remain firmly convinced that the Fourteenth Amendment did not deprive the state of the power to adopt it,” Stevens said in his Alabama speech. As defiant as Stevens was in defending Kelo, he did confess one error in the opinion, a rarity for any justice. In the first footnote of his Kelo majority decision, Stevens had written that the Takings Clause of the Fifth Amendment was made applicable to the states in an 1897 decision Chicago, B. & Q. R. Co. v. Chicago. In his Alabama speech, Stevens said, “It is somewhat embarrassing to acknowledge that the Chicago case did not even cite the Fifth Amendment. In fact, neither that case nor any later Supreme Court case with which I am familiar explained how or why the Takings Clause might have been made applicable to the states.” In his “set the record straight” speaking tour, it appears, Stevens is correcting not only his colleagues but himself. Tony Mauro can be contacted at [email protected].

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