Why Kelo Should Be A Comfort to Liberals

With the nomination of John Roberts to the Supreme Court, liberals remain breathless in their fear that the addition of Roberts to the Supreme Court will spell doom for Roe v. Wade. But the 2005 decision in Kelo v. City of New London should provide rest for the liberals running around like chickens with the heads cut off. Despite the arguments about the merits of Kelo, the foundational principles underlying the decision mean that Roe will probably survive the appointment of Roberts to the Court.

Ask any law student or legal professional and they will tell you that perhaps the most important foundational principal of legal decision-making is stare decisis, Latin for "let the decision stand." A plain English definition is that stare decisis means that the Court will not overrule itself without a substantial legal reason. The longer the line of decisions founded on or referring to a previous decision, the more difficult it becomes to find a legal reason for the overturning of a precedent.

The majority opinion in Kelo found its premise in two key cases. In 1954, the Court decided the case of Berman v. Parker. In Berman, the Court sustained a D.C. development plan to redevelop a blighted residential area. The area included a department store the city admitted was not blighted at all. However, the Court reasoned that the proper role of the judiciary was to defer to the judgment of the executive and legislative that the entire area be developed and planned as a whole. Thirty years later in Hawaii Housing Authority v. Midkiff, the Court ruled as permissible a series of land transfers ordered by the state of Hawaii from one set of landowners to another in order to break apart the oligarchy of land ownership in the state.

In each case, the Supreme Court found the activities to be in furtherance of a public purpose. Thus the Kelo decision, which authorized a transfer of land from one set of owners to another set of owners under a considered plan, is an amalgamation of the Berman and the Midkiff decisions. The principle of stare decisis meant that the current Court was bound by Berman and Midkiff decisions unless there was a sound legal reason to change the interpretation of the law to this point. However, the facts in Kelo did not support an alteration of the understanding of the eminent domain.

So what does this have to do with Roe and the debate over abortion. Simply put, the Court no matter what its current composition is to a certain extent, bound by the decisions of past Courts. The purpose of stare decisis is to provide predictability in the law despite the current personnel on the Supreme Court. Even if a majority of the members of the Court decide to take a case on abortion, itself not necessarily a given, the fact that over thirty years of decision founded on the legality of abortion means that the court will need a solid reason for overturning Roe.

Since Roe, Casey, and even recent decisions, including Stenberg v. Carhart in 2000, the Court, despite changes in personnel, have assumed the legality of abortion. Even if Judge Roberts believes abortion to be immoral on a personal level, there can not be overturning of Roe without a sound legal reason, a series of facts or law that some how justifies the overturning of thirty years of decisional law. Stare decisis will not let the Court just alter law willy-nilly.

The entire point of stare decisis is to provide society and the law with predictability. The predictability of the law continues without regard to the composition of the Court. The Supreme Court was bound by prior decisions in Kelo and they would similarly be bound by the prior law in the abortion line of cases, even with Judge Roberts on the Court.

Posted by Matt Johnston at July 29, 2005 11:46 PM