The Nine [169]
Breyer’s demeanor, as well as his jurisprudence, reflected both his patrician in-laws and his own Jewish parents. He sometimes lapsed into what sounded like an English accent, and one of his daughters became, of all things, an Episcopal priest. But Breyer’s reluctance to stir up religious animosity was strictly urban pol in origin. From his parents and their experience in San Francisco politics, he learned the dangers of religious conflict, even in the United States, and he saw the Constitution as the vehicle to keep ecumenical passions in check. A natural conciliator, Breyer liked nothing less than picking unnecessary fights.
And that spirit, in 2005, gave Breyer something close to control of the Court. Of all the justices, he cast the fewest dissenting votes that term, ten, just behind O’Connor’s eleven. He brokered an extraordinary compromise in a series of complex cases reviewing the federal sentencing guidelines that he, as an appeals court judge, had played a major role in creating. After years of hotly contested cases on the subject, the result was that the guidelines would be advisory rather than mandatory, which was what Breyer had sought all along. He controlled the outcome of the Ten Commandments cases, voted with Kennedy on the juvenile death penalty, and even joined an unusual majority in the most enjoyable case of the year. In May, the Court ruled 5–4 that states could not permit in-state wineries to ship to consumers while prohibiting out-of-state producers from doing the same thing. The prowine majority consisted of Kennedy, the author of the opinion, Scalia, Souter, Ginsburg, and Breyer—who all happened to be the leading wine aficionados on the Court. Breyer later called the group “the rosy-cheeked caucus.”
This long run of success was why Breyer despaired at the other big case that came down at the end of the same term. In 1998, Pfizer had announced plans to build a research facility in New London, Connecticut; the city intended to spruce up the surrounding neighborhood. As part of the development, New London used its power of eminent domain to take the homes of several residents and turn them over to private developers for a shopping center or perhaps a parking lot. Susette Kelo and several of her neighbors sued, claiming that the city was violating the Fifth Amendment, which says that “private property [shall not] be taken for public use, without just compensation.” A city could take land for a highway, school, or hospital, the plaintiffs claimed, but the transfer of private property from one private entity to another did not amount to a public use.
When Kelo v. City of New London was argued back in February 2005, the case drew relatively little public attention. Even to the justices, the matter seemed to be a fairly esoteric dispute over a familiar part of the Constitution. The Court had found previously that government could use eminent domain powers to transfer land to private parties—to railroads, for example—and the question here was simply whether an urban redevelopment plan qualified as a public use. It hardly seemed the stuff of high drama, and at the end of the term, Stevens wrote a straightforward opinion for a five-justice majority (including Kennedy, Souter, Ginsburg, and Breyer) approving what the city had done. Stevens styled his opinion as an exercise in judicial restraint, as he deferred to the local elected officials about what constituted a public use. “Just as we decline to second-guess the City’s considered judgments about the efficacy of its development plan, we also decline to second-guess the City’s determinations as to what lands it needs to acquire in order to effectuate the project,” he wrote.
But the justices, especially Stevens, had misjudged the emotional resonance of the subject. By raising