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The Institute for Justice and the Liberty Counsel have much in common these days. Both are public interest legal groups that mounted broad-based campaigns in the term just ended to bring seemingly winning issues before a conservative U.S. Supreme Court. For the D.C.-based Institute for Justice, the issue was what it calls the abuse of eminent domain, the government condemnation of private property for other private uses. For Liberty Counsel of Orlando, Fla., it was preserving Ten Commandments displays in public spaces. Both banked on the kind of litigation strategy and public education campaigns that, when successful, invite comparison with the late Thurgood Marshall’s multifront assault on school segregation in the 1950s. But they both encountered one small problem on their way to the pantheon of Supreme Court advocacy: They lost, 5-4. In both cases, a single justice they had hoped would vote with them defected, turned off by the facts of their cases. In Kelo v. City of New London, the justices backed New London’s economic development plan that included the condemnation of homes owned by the institute’s clients. And while upholding a Ten Commandments display in a separate Texas case, the Court in Liberty Counsel’s case, McCreary County v. ACLU of Kentucky, said two county courthouse displays in Kentucky, mounted with clearly religious intent, had to come down. So what went wrong? The track record was there. The institute has litigated seven eminent domain cases in recent years, and Liberty Counsel had 13 Ten Commandments cases before the courts. Did they pick the wrong cases to take to the Supreme Court — cases with bad facts that invited defeat? Or, with the publicity and high hopes surrounding their cases, was it a matter of pressing too hard and expecting too much from a Court that still prefers a moderate course? “I’ve wondered about that after this ruling,” says Mathew Staver, president and founder of Liberty Counsel, who argued the McCreary case before the Court, and lost. “But you can’t always control the timing, and you can’t ever predict where this Court is going to go.” MAKING SENSE To University of Virginia political science professor David O’Brien, both losses remind him of past episodes in which conservative grass-roots groups expectantly brought their causes to the high court, only to be thwarted. At one time, the term-limits movement seemed like a sure winner with populist support, recalls O’Brien, who studies the interaction between the Court and politics. But in 1995, the Court unceremoniously halted the movement in its tracks, ruling that term limits on members of Congress could only be imposed through a constitutional amendment. Likewise, anti-abortion groups were once hopeful they could persuade the Court to overturn Roe v. Wade, but in 1992 the Court ended that aspiration with its ruling in Planned Parenthood v. Casey, which upheld the basic abortion right. But conservative groups keep trying. “During the Rehnquist Court, there’s been a tremendous proliferation of interest group activity directed at the justices,” says O’Brien. But that pressure has come as the Rehnquist Court was “working out the nuances of its conservatism,” leading to inevitable disappointments. Just as the Burger Court was castigated as too liberal, now too, says O’Brien, the Rehnquist Court has become a target. “Now conservatives are saying the worst justices on the Court are Anthony Kennedy, Sandra Day O’Connor, and David Souter — all Republican appointees.” All three of those justices came in for criticism from conservatives in the wake of the eminent domain and Ten Commandments cases in June. It was Kennedy who looked at the facts of the Kelo eminent domain case and strayed from the side some expected him to support. Susette Kelo and the other New London homeowners in the eminent domain case became familiar faces on broadcast news shows as a result of the institute’s intense public relations campaign. But Kennedy looked past Kelo’s plight, instead reviewing the facts that led New London to seize her house for economic development that would complement a Pfizer Inc. facility. Kennedy found that New London officials had conducted enough of a study of the city’s economic needs and of the redevelopment proposal that the decision deserved deference. “This taking occurred in the context of a comprehensive development plan meant to address a serious city-wide depression,” Kennedy wrote approvingly as he provided the crucial fifth vote against the institute. A case in which the transfers were “suspicious,” or made for implausible reasons, Kennedy indicated, might not pass constitutional muster. Soon after the decision, Columbia University Law School professor Thomas Merrill said that if the institute had presented the Court with a more egregious case, in which local officials had “sold out” to a developer without a legitimate development plan, it could have “flipped the result” by winning over Kennedy. New London’s plan was “far from being the worst example of eminent domain abuse,” said Merrill, who wrote a brief on the other side of the case for the American Planning Association. Institute lawyers vigorously rebut his charge. “We absolutely picked the right case,” says senior institute attorney Dana Berliner, author of a study identifying 10,000 cases of what the institute calls eminent domain abuse. “It was clean, clean, clean.” Putting a case before the Court in which corruption or sham planning was behind the condemnation, she says, might have produced a win, “but it wouldn’t have told us anything” about the vast majority of condemnations, which are preceded by enough “jumping through the hoops” to give at least the appearance of careful planning. LOSS OF LIBERTY Unfavorable facts may have cost the Liberty Counsel a crucial vote. Though the latest version of the Kentucky courthouse displays at issue attempted to secularize the Commandments by surrounding them with other historical documents, the earlier ones — and the government resolutions that accompanied them — were almost defiantly religious in content and tone. Staver argued to the Court that the five-year history of the displays was dead, buried, and irrelevant, but Justice Stephen Breyer thought it was fatal. Breyer voted to uphold the Texas Ten Commandments display, which had a longer, albeit more neutral, history. But he switched sides and joined Souter’s majority opinion to strike down the Kentucky displays. In a concurrence in the Texas case, Breyer referred to the Kentucky case: “The short (and stormy) history of the courthouse Commandments’ displays demonstrates the substantially religious objectives of those who mounted them.” Staver now says he could have waited to bring other Ten Commandments cases to the Court — one from Indiana, the other from Kentucky — in which the displays were similar but the history behind them was devoid of religious intent or rhetoric. In retrospect, Staver says, those might have been safer bets. But many of the contemporary Ten Commandments displays across the country have more complicated histories that blend the religious with the secular, Staver says, and he was hoping for a ruling that would tell local governments how to repair or repudiate tainted history and keep their displays up. “We didn’t get any answer at all on that question,” Staver laments. Despite their losses, both organizations and their supporters are already making lemonade out of the lemons. The Institute for Justice on June 29 launched a $3 million “Hands Off My Home” campaign to bring its eminent domain fight to the state level. Litigation and lobbying will be redirected toward the state level, says Berliner, where state legislators and courts might be more sympathetic to the plight of homeowners. At the federal level, members of Congress are also moving to blunt the effect of Kelo with bills that would bar the use of eminent domain for private uses in state and local developments that use federal funds. John Kramer, the institute’s vice president for communications, readily acknowledges that the defeat in the eminent domain case has triggered widespread anger and is bringing new attention to the issue and to the institute. “Now everyone gets it that their house is in danger,” says Kramer. “We are a public interest law firm, and part of our mission is to inform the public.” Staver says his group will press forward with other Ten Commandments cases, in hopes that their different facts might appeal to a Court which, by then, might also be different. Staver’s allies on the religious right are using the defeat to criticize the Court and focus new attention on the importance of naming kindred justices to fill a vacancy. Speaking before O’Connor’s resignation announcement, the Rev. Louis Sheldon of Traditional Values Coalition singled out the justice, who voted against both Ten Commandments displays. “If Justice Sandra Day O’Connor retires soon, we will have the opportunity to place someone on the Court who appreciates and understands the moral and religious foundations upon which America was founded,” Sheldon said. Florida International University law school professor Thomas Baker says the reaction by the losing organizations in both cases shows how, in Washington, even a defeat can be a plus. “They can recruit members and do direct fund raising, whether they win or lose,” says Baker, who once was a Supreme Court fellow. “If they win, they say, ‘We are only one justice away from losing,’ and if they lose, they say, ‘We are only one justice away from winning.’ Both letters say, ‘Send money.’”

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