The Nine [170]
Overnight, it was as if the Terri Schiavo chorus had reconvened. Rather than as a victory for judicial restraint, the conservative movement treated Kelo as a triumph of big government. Tom DeLay called it “a horrible decision,” adding, “This Congress is not going to just sit by—idly sit by—and let an unaccountable judiciary make these kinds of decisions without taking our responsibility and our duty given to us by the Constitution to be a check on the judiciary.” DeLay in the House and John Cornyn in the Senate pushed measures to deny federal funds to any local project that would use eminent domain to force people to sell their property to make way for a profit-making venture. Ever alert for the chance to make a public splash, Jay Sekulow claimed implausibly that the Kelo decision might lead to government seizures of church land—and added the case to his bill of particulars against the Supreme Court. Even some liberals, who regarded the decision as a symptom of authoritarian government, denounced Stevens’s opinion.
The animosity toward the Court reached frenzied proportions. A conservative activist, Logan Darrow Clements, wrote to the government of Souter’s hometown in New Hampshire asking that the town take over the justice’s farm and turn it into the “Lost Liberty Hotel,” featuring the “Just Desserts Café.” “The justification for such an eminent domain action is that our hotel will better serve the public interest as it will bring in economic development and higher tax revenue to Weare,” wrote Clements. The following year, the matter even came up for a vote in Weare, with the town voting 1,167 to 493 to leave the Souter farm alone. (Even if Souter had lost the vote, it was unlikely that his home would have been taken.) In more serious responses to the case, several states tightened requirements on the use of eminent domain. (In a way, these actions vindicated Stevens, who wrote that while the Constitution allowed such uses of eminent domain, states were, of course, free to restrict the practice.)
Breyer despaired at the drubbing the Court was taking. He took every opportunity to point out that the decision did not order any local government to buy land but merely permitted the practice under limited circumstances. The complaints should have gone to the initiators of such seizures, not the justices. In truth, the controversy was stoked by conservatives precisely because it took place at the same time as the confirmation fights. The cause united social and economic conservatives against a “liberal” Supreme Court. As Sean Rushton, the executive director of the Committee for Justice—Boyden Gray’s organization, dedicated to pushing Bush’s judicial nominees—said of the Kelo decision, “It’s so bad, it’s good.”
When Roberts began his first term, with O’Connor still on the bench, the Court enjoyed a docket full of relatively uncontroversial cases. In addition, the new chief justice made a point of pushing his colleagues toward narrow decisions that could command unanimous support. In a speech at Georgetown, he made the case for this judicial minimalism, asserting, “The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds.” For a time, the justices indulged the chief’s wishes, and the percentage of unanimous cases ticked upward. In conference, Roberts let discussions linger for longer than Rehnquist had,