Kelo v. New London

We will now hear argument in the case at Kilo versus City of New London.

Mr.

Bull.

Hey everyone, this is Leon Napok, host of Fiasco and co-creator of Slowburn.

On today's episode of 5-4, Peter, Rhiannon, and Michael are talking about a 2005 case that, unlike every other case they've covered so far, was decided by the Supreme Court's liberal wing.

My name is Suzette Kilo, and the government stole my home.

At issue in Kilo v.

New London was Eminent Domain, which empowers the government to seize a homeowner's land and hand it over to private developers, while corporations feast on the spoils.

You know, this is what the U.S.

Supreme Court said that the city of New London was justified in taking our homes.

An empty field.

You know, as far as I'm concerned, it's an empty dream.

This is Five to Four, a podcast about how much the Supreme Court sucks.

Welcome to 5-4,

where we dissect and analyze the Supreme Court cases that have left America cracked and barren, like hot sunlight beaming down on a drought-stricken plain.

I am Peter.

Twitter's the law boy.

And I am here with Michael.

Hey, everybody.

And Rhiannon.

Hi.

Today's episode is Kilo versus the City of New London.

Case about eminent domain, the right of the government to seize private property.

We've received some criticism in our podcast reviews for being,

quote, a bunch of libs, millennial leftists, proliferating, quote, politically biased tripe.

And we take this criticism very seriously.

And that's why this episode we are taking on a case where the liberals were in the the majority.

We also want to note other reviews have described us as immature, using gratuitous profanity, sanctimonious, lacking respect for the practice of law.

We will not be making any changes to address those concerns.

So in this case, the four liberals and Anthony Kennedy held that the city of New London, Connecticut could seize private property, including the homes of plaintiff Suzette Kilo and several others, and turn it over to a private developer in the name of fostering economic development.

And this is a showcase for hypocrisy from both the liberals and the conservatives on the court, I think.

The liberals adopted the sort of narrow and formalistic interpretation of the Constitution that we usually criticize the conservatives for.

And the conservative dissent goes with the sort of context and policy-driven rationale that they themselves usually reject as improper.

Yeah.

And at the end of the day, though, we have to hand it to the conservatives here.

They were in the right.

And this decision gave a green light to local governments to seize property where predominantly poor people live and work and turn control of them over to wealthy private developers or private companies who have no meaningful obligation to do anything with the land.

Right.

So, Ree,

walk us through the background here.

What's going on in New London, Connecticut?

Yeah, so the city of New London, Connecticut had fallen on some harder economic times back in the late 90s.

So their population keeps going down.

People are moving away from New London and the city's tax base is therefore decreasing.

And the city leaders are looking around and saying, okay, we really need a boon in economic development.

So Enter.

a little mom-and-pop shop called Pfizer.

The

pharmaceutical company back in 1998 begins construction of a major new research facility in New London.

And specifically, there's a neighborhood in New London called Fort Trumbull.

And that's where the new Pfizer facility is being built.

So, in response to Pfizer showing interest in having a brand new $350 million facility there in the Fort Trumbull neighborhood, the city of New London reactivates this old private entity.

It's a nonprofit that's run by the city.

It's called the New London Development Corporation, and they charge the New London Development Corporation with developing the Fort Trumbull neighborhood and designing and implementing a plan for new economic activity that would coincide with the Pfizer plant development.

So

that development corporation created a development plan for the Fort Trumbull neighborhood.

It was a big plan.

It includes like a resort hotel, a conference center, a state park, new plans for building a museum, 80 to 100 new residences, plus like a bunch of office and retail space.

So in the year 2000, the city of New London approved the development plan and authorized the development corporation to acquire the necessary land in the Fort Trumbull neighborhood to start developing all the businesses.

The development corporation turned around and they offered to purchase all 115 lots that were in the Fort Trumbull neighborhood.

And those lots are both commercial lots and residential lots.

But when

the Development Corporation offered to purchase all of the lots, owners of 15 of the properties refused to sell.

Now it's nine owners that become the petitioners here, and the lead plaintiff is Suzette Kilo.

Suzette Kilo is a working-class person.

Interviewers, reporters mentioned that she works two jobs.

She had lived there since 1997.

Another petitioner, for example, named Wilhamina Derry, she was born in the house in 1918, the house that she lived in in Fort Trumbull.

She was born in that house and still lived there for her entire life.

And her husband had like lived there for 60 years.

Their kids lived next door.

They had roots.

Yeah, you know, these are lower class, working class families and individuals.

They had roots multiple generations, like in and around this neighborhood on their properties that they owned for decades.

And so the petitioners here, like they want to keep their damn homes, you know, they're saying that the government can't just take their property and, first of all, hand it over to a private corporation and second of all, hand it over to that private corporation just for a promised in the future economic improvement.

Pretty much the same reaction I think anyone would have to the government just like knocking on your door one day and being like, oh, you got to leave.

Exactly.

build a college.

I don't know if you heard about this, but we have to help Pfizer out.

Yeah.

Have you guys heard of a little company called Pfizer?

They want your backyard.

Some little, like, you know, podunk city councilmen who have like boners over the idea that their town is going to become this economic hub.

Yeah, we'll talk about this in a bit later, but like, you know, the city council is the lowest form of government, right?

I can't think of anything lower.

Throwing rocks at like

school board.

Wow.

There you go.

Okay.

I take it back.

School board is the lowest form of government, but right above that is city council.

So, yeah, I mean, they're facing off with these homeowners, and on their side is one of the biggest corporations in the world.

Yes.

Yes.

So the legal issue here is about the takings clause of the Fifth Amendment, which states that, quote, private property shall not be taken for public use without just compensation.

And so the question here is, what does public use mean?

Does it mean that they can just take Suzette Kilo's house and hand it over to some developer and say that it's for economic development?

Or is it more limited than that?

Public use historically had been interpreted to be equivalent to public purpose.

It doesn't need to be public use like a park, right?

It's a little broader than that.

It's like for the purpose of helping the public, but not necessarily accessible to the whole public, for example.

And the court holds that this is fine because the city had a comprehensive development plan and they seized the property pursuant to that plan.

And, you know, the city had decided that the area was in need of rejuvenation and the court should defer to them on that point.

And

they go on and on about how it's totally consistent with precedent and all that sort of stuff that we're not going to get too deep into because it's...

it's pretty boring.

Right, right.

But that's fundamentally correct anyway.

Yeah.

Yeah.

Yeah.

And we'll get into that too, I think, when we talk about the Thomas dissent.

But the gist of this here is what does public use mean under the takings clause?

And does it apply to a situation where they're just seizing private property and handing it over to some other private entity?

And the court's saying, well, look, yeah, sure, it's being handed to a private entity, but it's for a public purpose.

Right.

But like, the new development isn't something that will be available for anyone to use, right?

It's an office complex and some.

And if that's a public purpose, then what's a private purpose, right?

And I think that's like the fundamental problem with the majority here.

If that's public, then what could a private purpose possibly look like?

And I think using the reasoning of the court, there's nothing really stopping the government from just seizing a poor person's home and giving it to a rich person.

on the grounds that they have the resources to do better with it.

They can make it more aesthetically pleasing.

They could start a business there, whatever.

It's like like making gentrification like a legitimate government end that justifies taking people's property, right?

Essentially.

Originally, like the taking clause started, it's like building railroads, you know, it's building highways.

It's things that like the government wants to do that you can't build the railroad if the house is there sort of thing.

And to the extent that there wouldn't be like direct public ownership, you know, if there's private ownership like a railroad, they would be common carriers where the public would have general access to their, to them anyway, right?

So

the contrast between that and what's going on here is very obvious.

You know, you don't have to be like trained in legal rhetoric or whatever to understand the difference between building the railroad and building a fucking office park.

And judges always talk about limiting principles.

What is the limiting principle in this reasoning?

And there just isn't one.

And what I mean by limiting principle is what prevents you from going down that slippery slope of just taking a poor person's home and handing it to a rich person or a rich company because they're going to gusty it up.

Right.

And nothing that the majority says really makes it clear that that can't happen.

And in fact, I think if you take the reasoning to its natural conclusion, that can happen.

Yeah, absolutely.

Yeah, I think so.

And I think Justice John Paul Stevens, he's the one who's writing for the majority here.

Really, the only thing he says that he kind of throws it in at the end is like, if states want to pass laws that are sort of like more limiting than this rule that we're giving you from the federal constitution, then you can do that if you want.

But it's not

the only thing that's the only punt that we have laid back to the conservatives for in the past.

Right.

A wonderful inversion.

Yeah.

Yeah.

They're just like, well, look.

This might sound crazy, but, you know, if they want to change it, they could get both houses in

the state legislature together or whatever they need to do and pass a law.

And it's like, I don't think that that's a serious approach to like analyzing constitutional authority.

Yeah, because you're not taking into account the like major power imbalance, right?

Like think about Suzette Kilo and Wilhelmina Dairy.

You know what I mean?

Like, how are they, what are they going to do?

Like, okay, well, we're going to lobby the state legislator about this because Pfizer is knocking on the door of the city.

Like, you know, like it doesn't make realistic sense.

Yeah, and it ignores the history on the ground, which is that eminent domain being used to take away the homes and businesses of people of lesser means, to give them to entities and people of greater means is very common.

And as a result,

I don't think we've talked about amicus briefing on the podcast, but amicus briefs are friends of the court briefs.

And it's just, if you ever see a Supreme Court case that you're interested in, you can write a brief and be like, hey, I have some thoughts on this too.

And so a lot of, you know, a lot of major lobbying groups, et cetera, file their briefs.

And in this case, you see all the sort of like libertarian usuals, right?

Cato and

all their friends file briefs in support of the petitioners.

But so does the NAACP

and I think a couple of other civil rights organizations.

supporting her case on the basis that these laws disproportionately impact minorities and the impoverished, not coming strictly from like this property rights sort of viewpoint that someone like the Cato Institute is going to have, but saying, Look, the way this actually plays out is discriminatory and kind of fucking awful.

And the opinion doesn't really tackle it with any seriousness at all.

I'm not even sure that it really tackles it.

Yeah, I think that's right.

And I sort of would love to see a town just condemning wealthy neighborhoods.

What that would look like.

Just like, hey, we're going to fucking wipe out these McMansions and just hand hand it over to,

I mean, look, an actual good use of the taking his clause would be to wipe out some shitty development, hand a meeting a couple mil and be like, all right, we're building Section 8 housing here, right?

Yeah.

Never going to happen.

Can you imagine?

Turn fucking a golf club into like a public park.

That would be

never happened.

Can you imagine

that scenario?

Like Roberts recuses himself because he's a member of the club.

Thomas, also a member member of the club, does not recuse himself.

Roberts is like, optics, guys, fair and impartial.

I can't do it.

And Thomas is like, fuck it, let's do it.

Yeah.

And then it goes 8.0.

So Thomas, Clarence Thomas writes, Sandra Day O'Connor writes the primary dissent here, but Clarence Thomas writes more aggressive dissent, doing all his usual things, which is like, in this case, sort of not wrong.

It's the most I've ever agreed with him on one of his like abolish this entire line of precedent sort of dissents.

And he starts with like long tangents on textual interpretation and it's just mind-numbing.

And then eventually he gets to the meat of it in my mind in his very last section, which is essentially an endorsement of the position outlined by the NAACP, where he says, quote, allowing the government to take property solely for the public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities.

Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.

End quote.

Spot on.

The whole dissent could have been that.

Yes.

It's a viewpoint that Clarence Thomas will completely ignore and dismiss in every other case

that ever finds its way to his desk.

That's sort of an exaggeration, but he obviously finds this sort of sort of thing very unconvincing in other circumstances.

Still, unequivocally right here.

And Kennedy and the liberals ignore all of this and just pretend it's not happening.

We're going to talk a little bit later about why we think the liberals did this, but in my mind, it's mostly baffling.

It's mostly just.

It's hard to wrap your head around.

Yeah.

I do want to say, I remember thinking in law school that Thomas's dissent was strong, but some of the early stuff is like things that I think I was impressed with in law school, but with a little bit of age and maturity, I'm just shocked that like anybody finds it an interesting or persuasive argument at all, like what the dictionary said the meaning of the word use was in like 1780 or was it Latin?

The Latin etymology of the word use is.

Do we really need a page in the Supreme Court on that?

Right.

I think it like makes it so obvious that like this shit is all really fake.

Like, I promise you, it's fake.

Because that's not like, this is the Supreme Court deciding major decisions, landmark decisions that will affect thousands, if not millions, of people.

You know what I mean?

Like, state laws for decades to come, all of this stuff.

And they're like,

what did the dictionary say?

Right.

Which that's not a fucking answer.

It's also not their Latin answer.

Clarence Thomas doesn't know shit about what the fucking Latin etymology means to the point where he can like make these fine distinctions.

Right, right.

He's just rambling on about it.

And I always imagine Suzette Kilo herself like read like someone's like, hey, this dissent really agrees with you.

And she's just like reading through the first eight pages of it.

Like, what the fuck is this?

Right.

Yes.

It doesn't do shit for me.

So disconnected.

Yeah.

And so

that's the first issue is like, what the, how is this a fucking public use, right?

And the term has become so bastardized that it appears to be meaningless to the court here.

But there's another issue.

And if you dig a little deeper, it's related.

It's that the public use in question here is economic development,

which is a vague and almost meaningless term that, without some level of real scrutiny by the court, is basically just handing municipalities free reign to seize and repurpose property at their whim, right?

What's economic development?

What is economic growth even, right?

I mean, it's these things are arbitrary to a degree where any municipality or state can manipulate them to their ends.

And the dissent basically says we should should probably just eliminate this as a legitimate reason for a taking under the Fifth Amendment.

And I think that's right.

This might be one of the few times where I'm just like Sandra Day O'Connor right on the head.

I think that's right.

Right.

I like her dissent here.

Maybe just like a little bit more than Thomas's, just because I feel like it's short and sweet.

It's tight.

It's pretty succinct.

And she calls out, it's what we've said a few times.

The conservatives on the court have been willing to do for decades and the liberals just aren't.

Like, she calls out what is sort of facially obvious and ridiculous about Stevens' majority opinion.

And fun fact, did you guys know this about Sandra Day O'Connor?

She went to Stanford Law and she was part of the graduating class of 1952, which was the only law school class in history that produced two Supreme Court justices.

Do you know who else?

Was that justices?

I don't know.

It was William Rehnquist.

I was going to say it could be Rehnquist, but I thought he was younger.

William Rehnquist graduated first in the class, and our girl Sandy graduated second.

Damn.

Damn.

Damn.

Beaten by Rehnquist.

What a fucking moron.

Can you fucking imagine, though, being a woman in law school in 1952, Stanford, and then graduating second?

And then it's fucking Bill Rehnquist who ends up being your biggest.

Check it out of that guy's shadow.

You're entirely sure.

Yeah, I know, right?

Jesus is crazy.

Yeah.

Yeah, that's got to be rough.

Sandra Day O'Connor, you know, I agree with her very little.

But yeah, I think probably worth noting that to rise out of the 1940s and 50s to prominence as a woman and as an attorney, insanely accomplished person, probably just tough as fucking nails, if I had to guess.

Yeah, I think that's absolutely right.

But I think there's also probably something to be said about the conservatism, too.

Like, oh, it helps, no doubt.

I mean, there's like that, it helped her get to the level that she did.

It helped her.

It helped Clarence Thomas, right?

Exactly.

There's no question that she's insanely talented, but certainly being a woman and a conservative was something that she was able to leverage, you know, maybe not knowingly or not intentionally, but was able to leverage to where she is.

Yeah.

She had a couple other points in dissent that I think are worth discussing.

Like the court talks about how the town went through all this trouble coming up with a plan, right?

The new London Development Corporation had an economic development plan.

And like the Supreme Court.

puts a lot of weight on this fucking little town's corporation, you know, development plan.

And it's like, well, look, we got to defer on this.

And the dissent has some questions about that.

And I think we also have some questions about that because it's like really our questions are a little more pointed.

Yes.

Like,

do you need to

defer to the city council of New London, Connecticut, when you're the Supreme Court?

Like, how much deference do these people really deserve?

Yeah.

And like, Kennedy is like, look, if there's any evidence of like untoward influence by like private parties on the city council, like that should be considered.

And I forget if it was, if it was O'Connor or Thomas, who was like, you'd have to be a fucking idiot to like not to be able to avoid like of course they're influenced by Pfizer's fucking presence.

The guy that they meet with from Pfizer, who like walks in and is like, hey, wouldn't you know, here's our pitch.

Right.

That guy is the most powerful person that city councilman has ever met in his life.

Right, right.

It's a city of like 20,000 people at about the year 2000.

And Pfizer is saying, like, $350 million facility.

We're going to build it in your backyard.

Like, what are they supposed to do?

Of course they're going to

have a private eye with a telephoto lens taking pics of like, you know, city councilmen taking like a briefcase in a dark alley or whatever, right?

Like the influence is out in the open.

Like it's obvious.

It's ridiculous.

And that's why there needs to be some substantive check.

against the ability of, you know, some city and some random politicians in some city to just seize the property of the poorest citizens, right?

There needs to be something somewhere, like ideally a court that can just hop in and say, hey, taking a look at this, maybe you should be, you know, we're going to apply this somewhat more rigid standard and not just give you every benefit of the doubt since you are obviously in the pocket of this fucking nightmare corporation who's like working on a pill that allows you to murder and then forget it or whatever.

I don't know what Pfizer was doing at the time.

The other point that the dissent makes that I just want to mention really quick is like, if you're going to do all this formalistic, you know, oh, the precedent says this and like, you know, the law says that bullshit, like you at least need to do it well.

Get it right.

Yeah.

Yeah.

And like the, the, the majority relies on like two cases.

And one of them is like in Hawaii, when Hawaii first became a state and like only like 22 people owned almost all the property on one of the islands.

So the state like used eminent domain to take it because they're like, this is essentially a monopoly and it's distorting the real estate market, right?

Right.

And handed it over to private individuals.

And O'Connor's like, look, the public purpose here was divesting these monopolists of property.

It doesn't matter that it was handed over after the fact.

That was the public purpose.

And you're like totally missing like the obviousness of this case.

And the majority is like, has no answer for that.

It's like the most backwards reading of the case, which it's like, if that's all you have, like you at least got to get it fucking right, man.

This is why it's such an inversion of a lot of the cases we've tackled because the conservatives in dissent are just like, can we approach this with the least bit of fucking nuance?

And the majority is like, no, actually, we're going to take this weirdly hard line on it.

Right.

Which is really, I mean, I don't want to paint with too broad of a brush, but that's usually the conservative approach.

Yeah.

Kennedy is maybe the most bizarre here in the majority.

I don't know if you guys agree with me on that.

Kennedy is like, he makes the most nods towards like libertarian ideas, which are very centered on property.

Property ownership and property rights is like the heart of libertarian ideology.

And here he is just like shrugging his shoulders at it getting fucking trampled on, whereas less libertarian, conservative colleagues are like, this is too much.

No, it is weird.

And he is, I think, if you asked most people who's like, who are the more libertarian justices over the past 25, 30 years, he'd be up there.

Right.

I think that's why he writes writes the concurrence.

And the concurrence he writes, it's basically just like these proposed limitations on the power to try to like assuage people, I think, that this won't be too bad.

But it's total, I mean, yeah, my eyes glazed over real quick.

I didn't get through it.

I was like, I was skimming.

Pretty bored.

Pretty bored.

So,

sorry, you can go to another podcast where they read everything

if you want to hear about that shit.

I mean, look, you know, before we move on to what happened in New London, Connecticut after this case, I want to leave you with one quote from the dissent, which is Sandra Day O'Connor saying, quote, nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory, end quote, under this majority opinion.

And I think that's just spot on.

There's nothing within the reasoning of the court that prevents this from being completely out of control, nor is the actual circumstance here in control.

This isn't a circumstance where like the majority's position makes sense, but you could see the slippery slope.

This is a situation where the majority's position is awful, both in the application here and in theory.

Yeah, exactly.

So Ree,

how'd it go?

How did it go in New London?

The corporate utopia that this picture is.

Yeah, wait, do I sense sarcasm?

Do you guys not trust that Pfizer really came in and like screwed this up?

We imagine that our listeners have heard of the utopia in New London, Connecticut these days.

Right.

So fill us in on the details.

Yeah, so this case took five years.

So it started in the year 2000 when Suzette Kilo and the petitioners refused to sell to the city.

And the Supreme Court decision, after going to the Connecticut Supreme Court, et cetera, the Supreme Court decision was handed down in 2005.

So immediately after the decision is handed down in 2005,

after the city like takes its W,

they turn around and announce plans to charge their residents for back rent for the past five years, saying that the petitioners had been on condemned city property the whole time and that they owed the city tens of thousands of dollars.

That's

like just no mercy.

Right.

Exactly.

That lawsuit is eventually settled and the city agreed to pay some additional compensation to the homeowners as well as physically moving Suzette Kilo's house.

So in terms of the development that happened in the Fort Trumbull area, listener, you're going to be disappointed.

So a Boston-based developer had originally scored exclusive rights to develop a big chunk of that Fort Trumbull area, but they never secured funding and the rights expired after being extended multiple times.

The rights expired in 2008.

Today, large, like a majority of the area remains undeveloped.

And so the city like never enjoyed new tax revenue from those properties or from that development.

And in fact, it's so undeveloped that after Hurricane Irene, the area was literally turned into a dump.

Like for the trash.

The trash.

I thought you were going to say the value went up after that.

No, no, no.

The city made it a dump.

Okay, but what about Pfizer then?

I mean, Pfizer had that like a $350 million research facility, right?

Pfizer, for its part, also eventually abandoned the project in 2010 at the same time, coincidentally, that their tax breaks from the city were set to expire.

They announced that they were closing the new London facility and they took about 1,500 jobs with them.

So the final cost to the city and the state for the purchase and bulldozing of the formerly privately held property was about $78 million.

As of 2018, the area remains an empty lot.

Yeah.

Not to mention the cost and like judicial resources and all of this of like taking this all the way to the Supreme Court.

And the fucking tax breaks for Pfizer, which

is

20%

property tax on 20% of the value of the property for a decade.

Yeah.

So Suzette Kilo, several years after the decision came down, she's interviewed just about her experience and about her thoughts about like, was this valuable?

Was it worth it to you?

Obviously, the petitioners lost.

And she says,

In the end, it was seven of us who fought like wild animals to save what we had.

I think that though we ultimately didn't win for ourselves, it has brought attention to what they did to us.

And if it can make it better for some other people so they don't lose their homes to a Dunkin' Donuts or a Walmart, I think we did some good.

So go off my libertarian queen, Susie.

She's cool.

There's another quote, sorry, I want to add really quick.

Please.

This was like from a retrospective in the New York Times.

The city councilman who was set to become New London's mayor in like 2010, talking about Pfizer leaving, says, basically, our economy lost a thousand jobs, but we still have a building.

But then he added, I don't know who's going to be looking for a building like that in this economy.

Oh, my God.

That's the sort of can-do attitude it takes to be the mayor of New London, Connecticut.

Yeah, there you go.

So they have a massive empty building with nothing to do with it and a dying town.

Yeah, surrounded by an empty lot that's like on and off used as a dump after natural disasters.

Are there any other companies here that have 25,000 employees that could spare a few?

There are like eight corporations in the world that could make use of this facility.

Right.

So I think that brings us to one of the big themes here, which is like Pfizer in this situation was almost certainly able to effectively commandeer the governments of New London to get what it wanted in exchange for almost nothing in the sense that they didn't have any real affirmative obligation to do anything.

It was just these promises that they sprinkled across the town.

And the amount of money and power they have is so significant.

that these weak local governments and even stronger local governments, as we'll discuss, aren't really in a position to say no.

And this happens with some frequency.

So, in 2017, the electronics manufacturing giant Foxconn announced that it was going to open a 20 million square foot plant employing 13,000 people in the relatively small town of Mount Pleasant, Wisconsin.

In order to build that plant, they needed property that was at the time a residential development.

They bought some folks out.

There's some holdouts.

The usual story.

The kind of twist here is that in the wake of Kilo, a lot of states passed laws saying that economic development was no longer a valid reason for the government to use eminent domain.

Wisconsin was one of those states, so you can't seize it, right?

Right.

Wrong.

Mount Pleasant rezones the properties to call them business districts.

And then

because they're zoned as business districts, the residential properties are considered blighted.

And blighted means that the, it's a legal term for land that is like dilapidated or otherwise, you know, in poor condition, which would usually mean something that is like falling apart.

In the context of a business district, however, residential homes may be arguably deemed blighted.

Yeah, it becomes like a formalistic sort of precisely the type of legal bullshit we despise on this podcast.

So they declare them blighted and kick the residents out.

Foxconn is doing there what many corporations do in this situation, right?

Yeah.

Wield the possibility of enormous investment and jobs above a municipality that is not in any position to realistically say no.

And, you know, they leverage that position to get what they want at the expense of the community.

And the risk is borne entirely by the community.

Just like Pfizer backed out New London, Foxconn has dramatically scaled back its plans.

I think it's down to like a thousand jobs now,

and just a a fraction of what it was, but they have wiped out a residential development.

And there's no constitutional remedy for that because of this case.

Yeah.

And so it's not just small local governments that get bulldozed here, right?

Like sometimes this happens in cooperation with big, powerful city governments.

In the case of New York, that's happened multiple times, actually.

One is this billionaire developer, Bruce Ratner, who came upon a nice neighborhood in Brooklyn that had like a great subway stop with like an intersection of a bunch of different lines.

And he really liked the look of it and the feel of it and was like, Man, I would love to build some high-rise towers here in this rapidly gentrifying neighborhood that is being developed regardless.

But he couldn't, you know, buy people out.

And there was a rail yard there and things like that.

So he bought the New Jersey Nets and then

used the idea of building an arena for the Nets as a public use for the purpose of eminent domain to seize property, build the arena.

These moves, all classic moves.

You know these moves.

You buy the sports team.

You can dangle the arena over their heads.

I've done this many a time.

Right.

He built his high-rises around the arena.

He sold the team, kept the arena rights.

So now he gets to charge rent to the team.

He gets to build his fucking high-rises, and the neighborhood is like wiped out.

Bruce Ratner is an insane, evil billionaire name.

It's bond villain.

Right.

Yeah.

Yeah.

Yeah.

Yeah.

The other example is Columbia.

Just, I think in a previous episode, we mentioned the idea of like universities being like real estate hedge funds, essentially.

And Columbia is

a great example of that in terms of just using eminent domain,

either the threat of eminent domain to bully people into selling them stuff, or for the holdouts, waiting till the entire neighborhood that they own 80% of gets completely run down because it's all abandoned buildings.

Yeah, yeah.

Then getting the entire neighborhood declared blighted because their empty buildings are infested with roaches and rats and shit.

And the people living there have no access to laundromats or anything because they bought the only laundromat and left it vacant.

And then using that to bully out the holdouts so that they can, you know, develop a new campus up in West Harlem.

So, of course, like the people that Columbia is displacing here are like, you know, minorities and working class people or middle-class people, right?

It's like, I think one of the plaintiffs in one of the lawsuits over this owned a gas station or something like that.

And you read the interviews with the residents holding it out there.

And like the laundromat example I gave was not abstract.

Like there were people complaining that they no longer had access to laundry.

Right.

And that's, again, that's people renting or who maybe own a small apartment and who've lived there for years who just cannot live there anymore as a practical matter, who are being forced out by a big, powerful, you know, $11 billion endowed university that serves mainly the rich.

Right.

Right.

And they're using a justification that's like, you know, the whole idea of like public use is the sort of implication that this will be beneficial for the community.

Right.

As if these people aren't part of it.

And as if the idea that like Pfizer or Foxconn or Columbia fucking university can dangle this over any resident's head whenever they want what they want, and that that end goal in their mind is actually fostering like the growth of the community rather than just like their own private goals.

It's ridiculous.

Yeah.

Yeah.

I don't believe New York ever passed a law in the wake of Kilo, but I'm not sure it matters because all this seems to have happened.

You just figure out little ways around it.

It's like logo politicians.

I mean, Bloomberg, my recollection, was very much behind Ratner's project with the Nets.

And, you know, it's like...

Yeah, what can you like?

When that much money starts accumulating behind something, power will follow.

And there's only so much you can do, especially when the only people standing in the way here are going to be homeowners that very, very rarely have any means.

Right.

People always talk about the benefits of unionization in the employer-employee context, but I always think about how useful it would be for municipalities across the country to just fucking band together and agree not to offer tax breaks to these psychotic companies.

Yes, that's so smart.

Jesus Christ, if you could just have an agreement that you won't do it, like we are one of those cities that won't do it, eventually the benefit would completely dissipate.

Right.

And they would be forced to actually pay.

Yeah.

But no city councilman,

again, just a step above the school board.

No city councilman is ready to tread that ground.

Why don't you run, Peter?

For school board, I'm going to.

So I think that kind of our last thought here is

a retrospective of sorts on what the fuck happened to the liberals here.

Yeah.

Why the fuck are the liberals doing this in this case?

And I think it's just this trust in institutions, including corporations.

But like a 10-year-old gets this, which is like, what interest does a corporation have in the economic development of these community members?

None at all.

Like, that's not the goal of what they're doing.

I've been thinking about this because we've been bouncing around.

Like, what were the liberals actually thinking here?

And there hasn't been, we haven't come up with anything satisfying, frankly.

The only thing I can really think is that for someone like Ginsburg or Stevens, maybe the fact that the conservative ecosphere was going nuts about this on the other side made them feel like this had to be the correct position.

Right.

There's like a negative partisanship.

Yeah, they were like, well, look, I don't really know about this, but if Cato is like filing lengthy briefs and like writing like teary op-eds about it, then surely we've got to be on the opposite side.

I think that must be part of it psychologically, but I really think, yeah, it's just this trust in the government's ability to do economic planning.

I mean, they engage in the sort of bullshit, formalistic, precedent-heavy, decontextualized analysis that

is just like the exact thing that conservatives do consistently and when they're at their weakest.

Like someone like Ginsburg, notorious for

starting her opinions with the context rather than legal rules.

Yeah.

And just she's quiet here.

It's bizarre to me.

Yeah, no, I do think it's almost a painfully naive trust in government at any level on any subject, right?

That like sort of suffuses this, like, oh, of course, the city council has an economic development plan, and who are we to question that?

Who the fuck are you?

You are the Supreme Court.

Right.

Right.

That's who you are.

Like, yes, exactly.

Right.

Worth noting, too, I think that in his autobiography, John Paul Stevens, he doesn't say it explicitly, not strongly, but says, like, this opinion is kind of fucked up, and I kind of regret the way I wrote this.

He says that it was, in his opinion, the most unpopular opinion that he wrote in his career as a Supreme Court justice, like 30 years or something like that.

And although he says that he still stands by the result that was reached, the holding, he says that his use of precedent was incorrect.

Yeah.

Oh, that makes me more upset.

That's yeah, yeah.

It's the complete opposite.

The use of precedent is completely irrelevant and tangential.

That's like, that's so fucking liberal.

It is.

Like, oh, sorry we used the wrong rules.

Yeah, exactly.

Yeah.

But also, the precedent was the, like, literally, not exaggerating, I don't think, the entire basis for the opinion.

So to say you got the precedent wrong, but the holding right, it's almost meaningless in this sense.

Right.

On the flip side of this, though, is that when we've been praising the conservative position here to some degree, they aren't so skeptical of government institutions when it comes to like national security and immigration.

And, you know, perhaps some application of that skepticism uh that you see in kilo to those cases would be beneficial for them and I think that that sort of underlines the fundamental point here which is yet another example in this case neither side is really consistently applying a judicial philosophy of any coherence

right here's the liberals doing what we say that the conservatives do often right rigidly applying precedent without any real inspection of the context because that's what gets them to the conclusion that I think they were instinctively biased toward.

And on the flip side, you have the conservatives opposing it, applying principles that they would otherwise disregard.

The bottom line is that you don't need to look that hard at their reasons because they're fake.

You can take a step back and think: like, what actually matters here to me?

What is holding in this case imply?

What might result from it?

On the ground, precedentially, however you want to view it.

You can take a step back and dismiss the ostensible reasons provided by these incredibly powerful hacks.

Yeah.

I mean, honestly, it's very reductive, but eight of the nine votes can be explained by, like, I really trust the government for four liberals, and I really think property rights matter for the four conservatives.

And it's just Kennedy who's like, what the fuck is he doing?

Yeah.

Wandering off into the wilderness with this shit.

Anthony, come back.

You okay?

Somebody check on Anthony.

Yeah.

You know, we touched on him with Citizens United and his concurrence here is another great example.

The most important thing to remember about Kennedy is that I don't mean this to be just an insult.

He's just not that smart.

He's really just not that sharp.

Obviously, he's sharp in some ways.

I'm not sitting here telling you that these like fancy degrees mean absolutely nothing or whatever.

He's smart in some ways that you're probably not, but he is fundamentally fundamentally in many important ways, not the sharpest fucking tact.

You don't need to look that much more into it.

It might legit be that he's been like, wow, that neighborhood would look really nice with a conference center.

Look, there might not be more to it than that.

Yeah.

The day will come, we do an entire episode on Anthony Kennedy.

I mean, he really is like the Supreme Court's like goofy, dumb uncle.

He's such a weirdo, and he held this court under his yoke for 25 years.

It's unbelievable.

All right.

Next week is DC v.

Heller.

It's a big one.

Second Amendment case from 2008.

Gun rights, Anton and Scalia all coming together in one beautiful package.

You're going to read it.

You're going to read it, Rihanna.

5-4 is presented by Westwood One and Prologue Projects.

This episode was produced by Kacha Kumkova with editorial oversight by Leon Nafok and Andrew Parsons.

Our artwork is by Teddy Blanks at ChipsNY, and our theme song is by Spatial Relations.

from the Westwood One Podcast Network.