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A blow to right-wing judicial activism


THE "TAKINGS" clause of the Fifth Amendment is for conservatives what the "equal protection" clause of the 14th is for liberals.

It wouldn't be fair to say that conservatives cherish property the way liberals cherish equality. But it would be fair to say that the "takings" clause is the conservative recipe for judicial activism - imposing their agenda through the courts, rather than bothering with democracy - the way they say liberals have misused the equal protection clause.

Of course, conservatives always claim to be against judicial activism. Liberals have long suspected that this was a decoy and that once conservatives had control of the federal courts, they would twist their mustaches, laugh contemptuously, and reveal the various policies they planned to impose by judicial fiat. Conservatives and liberals alike have been waiting for this moment for a third of a century.

Each Supreme Court appointment by a Republican president seems to be "it." And yet "it" hasn't happened. Roe vs. Wade - the high-water mark of liberal judicial activism - still stands. And Thursday, the court said a surprise "no thanks" to judicial activism, Republican-style.

The equal protection clause was a handy tool because just about anything the government does or doesn't do can be framed as treating people unequally. (You get pulled over for speeding and he doesn't; she gets a job and you don't; the president calls on him at a press conference and not you; and so on.) When does unequal treatment become unconstitutional? In the heyday of the Warren court, almost anything on your wish list was at least worth a try.

Almost any government activity can also be seen as taking property "without just compensation." The basic model of an unconstitutional "taking" would be if the government threw you out of your house. But the godfather of the "taking" movement, professor Richard Epstein of the University of Chicago Law School, says: OK, what if you owned two houses and the government took one of them? Still a "taking."

So suppose that the government took a half-interest in both houses? What's the difference? Or what if the government enacts zoning or environmental regulations that reduce the value of your house by half? Or gives someone a government benefit that you don't get but, as a taxpayer, will have to pay for?

In law school, this is called "salami slicing," and it has been known to drive people mad.

The case decided on Thursday, though, seemed promising to "taking" fans because it wasn't about compensation. It was about the requirement that any government taking must have a "public purpose." They can't take your house and give it to the mayor's mistress, even if they pay you for it. But they can, apparently, take your house and tear it down to make room for a development of trendy shops and restaurants, a hotel, and so on. That was the plan in New London, Conn., until a few working-class spoilsports wouldn't budge.

The court ruled, 5-4, that yuppification is a valid public purpose. Or at least it was reasonable for New London to promote yuppification. Who wouldn't like a few more Starbucks in town?

When the local government showers a big development with money and favors, it's usually not about sovereignty but about lack of sovereignty. Private developers play jurisdictions off against one another, extracting concessions from all that none would actually make a sovereign decision to give. A Supreme Court decision that concessions of this sort were unconstitutional would have taken them off the table and actually increased the effective sovereignty of elected officials.

So the danger of conservative judicial activism has been averted for another year. Stay tuned.

Michael Kinsley is opinion page editor and editorial page editor of the Los Angeles Times, a Tribune Publishing newspaper.

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