Q&A: Reflections, a Decade Later, On 'Little Pink House' Case
Posted: Tue Jun 30, 2015 2:03 pm
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[quote=http://www.nationallawjournal.com/id=12 ... House-Case]
Q&A: Reflections, a Decade Later, On 'Little Pink House' Case
Scott Bullock of the Institute for Justice argued against eminent domain in Kelo v. City of New London.
Tony Mauro, The National Law Journal
June 6, 2015
Ten years ago this month, the U.S. Supreme Court handed down one of its most unpopular decisions in modern history.
In Kelo v. City of New London, the high court said governments could take private property by eminent domain and turn it over to private developers as part of an economic development plan.
Within days of losing the case on June 23, 2005, the libertarian Institute for Justice launched a movement against what it called eminent-domain "abuse." The institute, which successfully pushed for reforms in 47 states, became known as a model for advocacy groups in the use of public relations and grassroots activism as part of litigation strategy.
Scott Bullock, now a senior attorney at the institute, argued the high court case for Susette Kelo, the Connecticut homeowner whose small pink house was seized for a commercial and industrial development that ultimately was scrapped.
Bullock was one of the original five employees of the Institute for Justice when it opened in 1991, with a budget of $680,000. Columnist George Will described it then as a "merry band of libertarian litigators." But now it has a staff of 85, offices in seven states and an annual budget of $19.5 million. The Institute for Justice has litigated a range of issues that include school choice, civil forfeiture, campaign finance and business regulation.
Next year, the 48-year-old Bullock is set to take over as president of the Institute for Justice, succeeding founding president Chip Mellor, who will become the organization's board chairman. In a recent interview, Bullock discussed Kelo, the institute and libertarianism. The interview was edited for length and clarity.
Scott Bullock, senior attorney for the Institute for Justice. May 28, 2015. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.
NLJ: With the tenth anniversary of Kelo, how would you assess its importance?
Bullock: I think few people would question that Kelo was the most widely despised decision by the court certainly in recent times and perhaps in its history. I.J. was determined to take the outrage that swept the nation after Kelo and turn it into profound change in the courts and in the legislatures. Three days after the decision was handed down, we put our activism program into full swing by launching our "Hands Off My Home" campaign. We held rallies with property owners and activists throughout the nation, wrote op-eds, drafted model legislation and testified before dozens of legislative bodies along with pursuing strategic state court litigation. A decade later, 44 states have changed their laws, with 11 of those states changing their constitutions. Three state supreme courts also increased protections for property owners even though the legislature did not, so that is a total of 47 states.
I don't believe any recent Supreme Court case has had that much of a direct and widespread impact.
Is the eminent-domain campaign completed?
There is still no meaningful federal protection against eminent-domain abuse, so home and small business owners are completely out of luck in states like New York. Kelo ultimately needs to be overturned by the court. And about half of the new state laws provide weak or middling reforms, so they need to be strengthened. After years of decline, we are starting to see an uptick in takings for private development, especially with the commercial real estate market returning and local governments hungry for new sources of tax revenue.
Justice Sandra Day O'Connor presided over the argument in Kelo. Chief Justice William Rehnquist was ill, and John Paul Stevens was delayed. How surprising was it to argue with O'Connor acting as chief?
It was certainly unexpected, but I don't think it changed the tenor of the argument much. I successfully changed my opening line to "Justice O'Connor and may it please the court."
The most thrilling part of the argument for our side was when New London's attorney conceded to Justice O'Connor the fundamental theme of our case that I set forth in the rest of my opening: that if the court signed off on this expansion of eminent domain, there really were no meaningful limits on it under the federal constitution. A Motel 6 really could be taken to make way for a Ritz-Carlton. Co-counsel Dana Berliner and I knew we could not look at each other at the table when the city attorney admitted that, because our poker faces would have evaporated. We just stared ahead at the shocked look on Justice O'Connor's face. That exchange was the focal point of O'Connor's impassioned Kelo dissent.
The most frustrating aspect of the argument was that we did not seem to make much headway with Justice [Anthony] Kennedy, who traditionally has been a pretty strong supporter of property rights. He turned out to be the deciding vote against Susette and the other homeowners.
Looking back, do you think the decision would have had the same impact — on the public as well as on legislation and court rulings — if you had won the case?
It certainly wasn't our intent to throw the case. But I and several of my colleagues have had people sincerely say to us over the past decade, "Congratulations on Kelo." It could fairly be viewed as losing the battle, but winning the war. We were, in fact, concerned the even if Kelo had come out the right way, the case would have been decided on narrow grounds and would have only addressed the use of eminent domain for pure economic development. As a result, many local governments would have switched to private condemnations using so-called blight laws, which were not at issue in Kelo. A win in Kelo certainly wouldn't have enlightened the public as much about private condemnations, either.
So, a decade on, eminent-domain abuse could still be quite rampant and people would be telling us that they thought we solved this problem in Kelo. I am happy to say that in about half the states that passed reform, the legislatures also addressed the abuse of blight laws for private condemnations so, in those instances, we actually got more than we would have even with a successful outcome in Kelo.
You are taking the helm of I.J. as it approaches its 25th anniversary. How has it evolved?
I.J. was a true startup. When we opened our doors, it was just the two co-founders, me — two months out from taking the bar — and a handful of support staff. We had one case. We have grown tremendously both in terms of our size and sophistication, and we win 70 percent of our cases either through litigation or legislation. What has stayed the same, however, is the commitment we bring to fighting for the four pillars of our mission: economic liberty, private property rights, school choice and free speech.
Reforming civil forfeiture appears to be the latest I.J. campaign that has resonated with the public. Have you gotten pushback from law enforcement groups?
Civil forfeiture has all the hallmarks of an I.J. issue: a cutting-edge legal controversy, extremely sympathetic property owners, and simple, outrageous facts where ordinary Americans face the loss of their homes, businesses, cash, cars and other property.
We wanted to do with civil forfeiture what we did with eminent-domain abuse and school choice: take a vitally important but relatively obscure issue that affected the rights of tens of thousands and bring it to national prominence using all the components of I.J.'s program: litigation, strategic research, media awareness, grassroots activism and legislative change.
We launched our forfeiture initiative in 2010 with the publication of our report Policing for Profit. Interest in the issue by the courts, in the media and the general public has grown exponentially since then, but there is still a lot of work to do. Most people can't believe that the government can take your property without convicting you of a crime and then profit from those activities. Law enforcement almost across the board vigorously opposes changes to the law.
In your early days, I.J. was sometimes described as "conservative." Being libertarian appears to be much more popular, especially among young people. How do you account for that?
It's encouraging how well-known and popular libertarian thinking is today, compared to the early '90s. Younger people have lived through a litany of examples of the failures of central planning domestically and on the international stage and have witnessed the growth of government power over so many aspects of our lives. Also, the idea of liberty is inherently exciting and profound. I think I.J. has had a particular impact in the growth of libertarian thinking by showing the real-world consequences of government abuse on the lives of everyday Americans.
Correction: An earlier version of this story misidentified the year when the Institute for Justice opened and in how many states the group now has offices.
Contact Tony Mauro at tmauro@alm.com. On Twitter: @Tonymauro
Copyright 2015. ALM Media Properties, LLC. All rights reserved.
[/quote]
I guess the most surprising thing is Justice Kennedy's dissent, a libertarian-lite that's been the crucial swing vote in "liberal" decisions upholding individual rights (including the recent gay marriage case). The others all seem to be ideological stooges.
[quote=http://www.nationallawjournal.com/id=12 ... House-Case]
Q&A: Reflections, a Decade Later, On 'Little Pink House' Case
Scott Bullock of the Institute for Justice argued against eminent domain in Kelo v. City of New London.
Tony Mauro, The National Law Journal
June 6, 2015
Ten years ago this month, the U.S. Supreme Court handed down one of its most unpopular decisions in modern history.
In Kelo v. City of New London, the high court said governments could take private property by eminent domain and turn it over to private developers as part of an economic development plan.
Within days of losing the case on June 23, 2005, the libertarian Institute for Justice launched a movement against what it called eminent-domain "abuse." The institute, which successfully pushed for reforms in 47 states, became known as a model for advocacy groups in the use of public relations and grassroots activism as part of litigation strategy.
Scott Bullock, now a senior attorney at the institute, argued the high court case for Susette Kelo, the Connecticut homeowner whose small pink house was seized for a commercial and industrial development that ultimately was scrapped.
Bullock was one of the original five employees of the Institute for Justice when it opened in 1991, with a budget of $680,000. Columnist George Will described it then as a "merry band of libertarian litigators." But now it has a staff of 85, offices in seven states and an annual budget of $19.5 million. The Institute for Justice has litigated a range of issues that include school choice, civil forfeiture, campaign finance and business regulation.
Next year, the 48-year-old Bullock is set to take over as president of the Institute for Justice, succeeding founding president Chip Mellor, who will become the organization's board chairman. In a recent interview, Bullock discussed Kelo, the institute and libertarianism. The interview was edited for length and clarity.
Scott Bullock, senior attorney for the Institute for Justice. May 28, 2015. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.
NLJ: With the tenth anniversary of Kelo, how would you assess its importance?
Bullock: I think few people would question that Kelo was the most widely despised decision by the court certainly in recent times and perhaps in its history. I.J. was determined to take the outrage that swept the nation after Kelo and turn it into profound change in the courts and in the legislatures. Three days after the decision was handed down, we put our activism program into full swing by launching our "Hands Off My Home" campaign. We held rallies with property owners and activists throughout the nation, wrote op-eds, drafted model legislation and testified before dozens of legislative bodies along with pursuing strategic state court litigation. A decade later, 44 states have changed their laws, with 11 of those states changing their constitutions. Three state supreme courts also increased protections for property owners even though the legislature did not, so that is a total of 47 states.
I don't believe any recent Supreme Court case has had that much of a direct and widespread impact.
Is the eminent-domain campaign completed?
There is still no meaningful federal protection against eminent-domain abuse, so home and small business owners are completely out of luck in states like New York. Kelo ultimately needs to be overturned by the court. And about half of the new state laws provide weak or middling reforms, so they need to be strengthened. After years of decline, we are starting to see an uptick in takings for private development, especially with the commercial real estate market returning and local governments hungry for new sources of tax revenue.
Justice Sandra Day O'Connor presided over the argument in Kelo. Chief Justice William Rehnquist was ill, and John Paul Stevens was delayed. How surprising was it to argue with O'Connor acting as chief?
It was certainly unexpected, but I don't think it changed the tenor of the argument much. I successfully changed my opening line to "Justice O'Connor and may it please the court."
The most thrilling part of the argument for our side was when New London's attorney conceded to Justice O'Connor the fundamental theme of our case that I set forth in the rest of my opening: that if the court signed off on this expansion of eminent domain, there really were no meaningful limits on it under the federal constitution. A Motel 6 really could be taken to make way for a Ritz-Carlton. Co-counsel Dana Berliner and I knew we could not look at each other at the table when the city attorney admitted that, because our poker faces would have evaporated. We just stared ahead at the shocked look on Justice O'Connor's face. That exchange was the focal point of O'Connor's impassioned Kelo dissent.
The most frustrating aspect of the argument was that we did not seem to make much headway with Justice [Anthony] Kennedy, who traditionally has been a pretty strong supporter of property rights. He turned out to be the deciding vote against Susette and the other homeowners.
Looking back, do you think the decision would have had the same impact — on the public as well as on legislation and court rulings — if you had won the case?
It certainly wasn't our intent to throw the case. But I and several of my colleagues have had people sincerely say to us over the past decade, "Congratulations on Kelo." It could fairly be viewed as losing the battle, but winning the war. We were, in fact, concerned the even if Kelo had come out the right way, the case would have been decided on narrow grounds and would have only addressed the use of eminent domain for pure economic development. As a result, many local governments would have switched to private condemnations using so-called blight laws, which were not at issue in Kelo. A win in Kelo certainly wouldn't have enlightened the public as much about private condemnations, either.
So, a decade on, eminent-domain abuse could still be quite rampant and people would be telling us that they thought we solved this problem in Kelo. I am happy to say that in about half the states that passed reform, the legislatures also addressed the abuse of blight laws for private condemnations so, in those instances, we actually got more than we would have even with a successful outcome in Kelo.
You are taking the helm of I.J. as it approaches its 25th anniversary. How has it evolved?
I.J. was a true startup. When we opened our doors, it was just the two co-founders, me — two months out from taking the bar — and a handful of support staff. We had one case. We have grown tremendously both in terms of our size and sophistication, and we win 70 percent of our cases either through litigation or legislation. What has stayed the same, however, is the commitment we bring to fighting for the four pillars of our mission: economic liberty, private property rights, school choice and free speech.
Reforming civil forfeiture appears to be the latest I.J. campaign that has resonated with the public. Have you gotten pushback from law enforcement groups?
Civil forfeiture has all the hallmarks of an I.J. issue: a cutting-edge legal controversy, extremely sympathetic property owners, and simple, outrageous facts where ordinary Americans face the loss of their homes, businesses, cash, cars and other property.
We wanted to do with civil forfeiture what we did with eminent-domain abuse and school choice: take a vitally important but relatively obscure issue that affected the rights of tens of thousands and bring it to national prominence using all the components of I.J.'s program: litigation, strategic research, media awareness, grassroots activism and legislative change.
We launched our forfeiture initiative in 2010 with the publication of our report Policing for Profit. Interest in the issue by the courts, in the media and the general public has grown exponentially since then, but there is still a lot of work to do. Most people can't believe that the government can take your property without convicting you of a crime and then profit from those activities. Law enforcement almost across the board vigorously opposes changes to the law.
In your early days, I.J. was sometimes described as "conservative." Being libertarian appears to be much more popular, especially among young people. How do you account for that?
It's encouraging how well-known and popular libertarian thinking is today, compared to the early '90s. Younger people have lived through a litany of examples of the failures of central planning domestically and on the international stage and have witnessed the growth of government power over so many aspects of our lives. Also, the idea of liberty is inherently exciting and profound. I think I.J. has had a particular impact in the growth of libertarian thinking by showing the real-world consequences of government abuse on the lives of everyday Americans.
Correction: An earlier version of this story misidentified the year when the Institute for Justice opened and in how many states the group now has offices.
Contact Tony Mauro at tmauro@alm.com. On Twitter: @Tonymauro
Copyright 2015. ALM Media Properties, LLC. All rights reserved.
[/quote]
I guess the most surprising thing is Justice Kennedy's dissent, a libertarian-lite that's been the crucial swing vote in "liberal" decisions upholding individual rights (including the recent gay marriage case). The others all seem to be ideological stooges.