In profile of Justice Stevens, another reflection by author of Kelo opinion that it was settled law but lousy policy

One flaw in a 3/22/10 New Yorker profile of soon-to-retire Supreme Court Justice John Paul Stevens, headlined After Stevens: What will the Supreme Court be like without its liberal leader?, was a failure to mention Stevens's controversial opinion in the 2005 Kelo v. New London eminent domain case, which prompted most states (though not New York) to pass laws tightening the practice of eminent domain.

Today's New York Times profile of Stevens, headlined At 89, Stevens Contemplates Law, and How to Leave It, partially remedies the situation:

Often, he added, the law requires a certain result, as in the court’s 2005 decision in Kelo v. City of New London, which allowed local governments to use the power of eminent domain to take private property for business development.

“The Kelo case was one of my most unpopular opinions, and that was one where I thought the law really was pretty well settled on the particular point,” he said.

Asked if he would have answered the question presented in the case differently had he instead been a legislator, Justice Stevens said probably yes.

“One of the nice things about this job is that you don’t have to make those decisions,” he added. “Very often you think, in this particular spot I don’t have to be deciding the really hard case about what should be done. Which is one of the reasons why the function is really quite different from what people often assume.”

Earlier reflections

In an 8/25/05 article headlined Supreme Court Memo; Justice Weighs Desire v. Duty (Duty Prevails), the Times reported on a speech Stevens made in which he elaborated somewhat:

Addressing a bar association meeting in Las Vegas, Justice Stevens dissected several of the recent term's decisions, including his own majority opinions in two of the term's most prominent cases. The outcomes were ''unwise,'' he said, but ''in each I was convinced that the law compelled a result that I would have opposed if I were a legislator.''

In one, the eminent domain case that became the term's most controversial decision, he said that his majority opinion that upheld the government's ''taking'' of private homes for a commercial development in New London, Conn., brought about a result ''entirely divorced from my judgment concerning the wisdom of the program'' that was under constitutional attack.

His own view, Justice Stevens told the Clark County Bar Association, was that ''the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials.'' But he said that the planned development fit the definition of ''public use'' that, in his view, the Constitution permitted for the exercise of eminent domain.

The question, then, is why legislators have not acted more prudently.