WASHINGTON -- The country is bracing for a bruising battle over filling a Supreme Court vacancy, a battle in which conservatives will praise ``judicial restraint'' and ``deference'' to popularly elected branches of government and liberals will praise judicial activism in defense of individual rights. But consider what the court did Thursday.
Most conservatives hoped that, in the most important case the court would decide this term, judicial activism would put a leash on popularly elected local governments and would pull courts more deeply into American governance in order to protect the rights of individuals. On Thursday, conservatives were disappointed.
The case came from New London, Conn., where the city government, like all governments, wants more revenues and has empowered a private entity, the New London Development Corporation, to exercise the awesome power of eminent domain. It has done so to condemn an unblighted working-class neighborhood in order to give the space to private developers whose condominiums, luxury hotel and private offices would pay more taxes than do the owners of the condemned homes and businesses.
The question answered Thursday was: Can government profit by seizing the property of people of modest means and giving it to wealthy people who can pay more taxes than can be extracted from the original owners? The court answered yes.
The Fifth Amendment says, among other things, ``nor shall private property be taken for public use, without just compensation'' (emphasis added). All state constitutions echo the Constitution's Framers by stipulating that takings must be for ``public use.'' The Framers, who weighed their words, clearly intended the adjective ``public'' to circumscribe government's power: Government should take private property only to create things -- roads, bridges, parks, public buildings -- directly owned or primarily used by the general public.
Fighting eviction from homes some of them had lived in all their lives, the New London owners appealed to Connecticut's Supreme Court, which ruled 4-3 against them. On Thursday they lost again. The U.S. Supreme Court issued a 5-4 ruling that drains the phrase ``public use'' of its clearly intended function of denying to government an untrammeled power to dispossess individuals of their most precious property -- their homes and businesses.