During oral arguments in February, Justice Antonin Scalia distilled the essence of New London's brazen claim: ``You can take from A and give to B if B pays more taxes?'' On Thursday the court said that the modifier ``public'' in the phrase ``public use'' does not modify government power at all. That is the logic of the opinion written by Justice John Paul Stevens and joined by justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer.
In a tart dissent, Justice Sandra Day O'Connor, joined by Chief Justice William Rehnquist, Justice Scalia and Justice Clarence Thomas, noted that the consequences of this decision ``will not be random.'' She says it is ``likely'' -- a considerable understatement -- that the beneficiaries of the decision will be people ``with disproportionate influence and power in the political process, including large corporations and development firms.''
Those on the receiving end of the life-shattering power that the court has validated will almost always be individuals of modest means. So this liberal decision -- it augments government power to aggrandize itself by bulldozing individuals' interests -- favors muscular economic battalions at the expense of society's little platoons, such as homeowners and the neighborhoods they comprise.
Dissenting separately, Justice Thomas noted the common law origins and clearly restrictive purpose of the Framers' ``public use'' requirement. And responding to the majority's dictum that the court should not ``second guess'' the New London city government's ``considered judgment'' about what constitutes seizing property for ``public use,'' he said: A court owes ``no deference'' to a legislature's or city government's self-interested reinterpretation of the phrase ``public use,'' a notably explicit clause of the Bill of Rights, any more than a court owes deference to a legislature's determination of what constitutes a ``reasonable'' search of a home.
Liberalism triumphed Thursday. Government became radically unlimited in seizing the very kinds of private property that should guarantee individuals a sphere of autonomy against government.
Conservatives should be reminded to be careful what they wish for. Their often-reflexive rhetoric praises ``judicial restraint'' and deference to -- it sometimes seems -- almost unleashable powers of the elected branches of governments. However, in the debate about the proper role of the judiciary in American democracy, conservatives who dogmatically preach a populist creed of deference to majoritarianism will thereby abandon, or at least radically restrict, the judiciary's indispensable role in limiting government.
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