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July 19, 2005

Roberts and Kelo

Now, since Roberts didn't necessarily believe anything he wrote working for the Bush I administration, this may not be significant, but some conservatives (or liberals) outraged by Kelo might be dismayed that Roberts successfully argued for a major precedent for that decision before the Supreme Court.

When the Supreme Court in Kelo cited precedents for using eminent domain to take property and transfer it to another private entity, they cited Amtrak buying up land and transferring it to private railroad companies who would then maintain the tracks, a power upheld by the Court in the 1992 National Railroad Passenger Corporation v. Boston & Maine Corp.  And who was running the show for the government in arguing for this power?  None other than Acting Solicitor General John Roberts.

As John Roberts argued in his brief to the Court:

This Court has held that the determination of what constitutes a "public use" is essentially one for the legislature, and the legislature has wide latitude to authorize the compensated transfer of property between private owners in order to accomplish a permissible public objective...it is fully permissible to change the ownership of private property without changing its use, provided there is an underlying public purpose to which the condemnation is rationally related.

Now Roberts may have thought better of these arguments -- who know? -- but Roberts replacing O'Connor (who voted against Kelo) may be a vote for entrenching the principles of Kelo in the law.   So this is one good thing that might come from Roberts confirmation, although I might be in the minority in that viewpoint on both the right and left :)

Posted by Nathan at July 19, 2005 11:46 PM