The ripples of the Kelo v. New London decision, in which the liberal justices of the US Supreme Court (for: Stevens, Kennedy, Souter, Ginsburg, and Breyer; opponents: O'Connor, Rehnquist, Scalia and Thomas) pretty much allowed local governments to take your house if they thought it was convenient, are still being felt. Pejman Yousefzadeh sees failure by Kelo's opponents; well, personally I really wanted to see Justice Souter lose his house. Oh well. But Bert Gall of the Institute for Justice notes first-year legislative progress in 25/45 states, and says:
"Those who discount the Kelo backlash because it has not yet changed every states' laws should keep in mind that large-scale reform movements almost always take several years -- if not decades -- before they completely succeed. Judged by that standard, the backlash has enjoyed unprecedented success -- especially when one considers that the beneficiaries of eminent domain abuse, cities and developers, have fought tooth and nail to maintain the status quo.
Were cities and developers emboldened by the Kelo decision to abuse eminent domain for private development? You bet. But that's only half the story of this past year. Their boldness fueled a mighty backlash that has produced the successes catalogued above, and the momentum for more in the years to come. To be sure, this is no time for advocates of reform to rest on their laurels; however, it's also not the time to fall prey to unwarranted pessimism."
What makes Kelo remarkable is not the statist "what's yours is mine" logic of it; one can find that in Canada and Europe without trouble. What's remarkable is that Americans are fighting back. Long may they fight - and in time, win.
As much as the Kelo decision pissed me off (and, as someone who had her childhood home taken to build farkin' condos, that would be extremely), I'm actually glad of it. It didn't grant any new powers to local governments, it kicked over the rock and shone a light on just how much power many of those governments had arrogated themselves. It was a much-needed wakeup call.
What I think that Kelo and lots of the other partisan-split 5-4 decisions reveal is that our society has become complex enough and job specialized enough that training as a lawyer is no longer a good preparation for the bench.
The most important quality for a lawyer these days is zealous advocacy—a “make it happen” attitude. This is in stark contrast to the most important quality for a judge: devotion to the law.
Can both qualities exist in the same individual? Recent experience suggests perhaps not.
I don't think that the solution to the problem is for the pendulum to swing the other way. That would just create tortured decisions in the other direction. IMO the real solution is to acknowledge that things change including the practice of law and it's time to split the profession into tracks: one for advocates and one for judges.