Justice Scalia’s Unpublished Dissent in Kelo v. City of New London

 

In my last post, I summarized what I learned from Justice John Paul Stevens’ papers on Kelo v. City of New London, the controversial 5-4 decision in which the Supreme Court ruled that the condemnation of homes for “private economic development” is permissible under the Takings Clause of the Fifth Amendment, which only allows takings that are for a “public use.” The papers were opened to the public earlier this week.

As noted in my previous post, one of the most interesting revelations in Stevens’ files is that Justice Antonin Scalia wrote a dissent in the case, which he eventually chose not to publish. In this post, I reprint Scalia’s dissent in its entirely (it’s short!), and then offer some comments. Here’s the dissent:

As JUSTICE O’CONNOR well explains, ante, at 1-2, 7-8 (dissenting opinion), the Court’s decision today goes far beyond the holdings of our prior cases, and renders part of the Takings Clause a virtual nullity. Under the precedent set today, the Public Use requirement is effectively nonjusticiable. The political branches in the Federal Government and each State are left to administer it on the honor system.

It is hard to endure the Court’s hymn of praise to “the best tradition of our federalist system,” which permits “different communities” to use “political processes” to “strike the balance of costs and benefits in different ways.” Ante, at 19. Why is it appropriate to sing that song in a case involving a real-live constitutional text clearly designed to constrain “political processes”; but to leave it unsung in the many cases involving phantom rights that the Court has summoned up from nowhere? The same Court that could fashion an enforceable constitutional entitlement out of every individual’s “‘right to define”‘ his or her ‘”own concept of existence, of meaning, of the universe, and of the mystery of human life,”‘ Lawrence v. Texas, 539 U.S. 558, 574 (2003) (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992) (plurality opinion)), today proclaims that the deeply felt “limits of [its] authority,” ante, at 19, preclude it from enforcing

a right that has been in the text of the Bill of Rights for more than two hundred years. The Court erects citadels in ultima Thule while leaving the Vandals unattended in Rome itself. This foolish disparity should not go unnoticed, nor (in the long run) uncorrected.

I respectfully dissent.

The Stevens files show that Scalia circulated this dissent on June 15, 2005, eight days before the Kelo decision was issued. He then withdrew it on June 21, after Justice Stevens removed the passages in his majority opinion that most incensed Scalia. Most notably, Stevens cut the references to “the best tradition of our federalist system” and allowing “different communities” to use “polit