00:00 [Archival]: We will now hear argument in the case of Kelo versus City of New London. Mr...

00:08 Leon Neyfakh: Hey everyone, this is Leon Neyfakh, host of FIASCO and co-creator of Slow Burn. 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.

00:24 Susette Kelo: My name is Susette Kelo, and the government stole my home.

00:28 Leon Neyfakh: At issue in Kelo 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.

00:40 [Archival]: This is what the US Supreme Court said that the city of New London was justified in taking our homes, an empty field. As far as I'm concerned, it's an empty dream.

00:51 Leon Neyfakh: This is 5-4, a podcast about how much the Supreme Court sucks.

01:05 Peter: 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...

01:25 Michael: Hey, everybody.

01:26 Peter: And Rhiannon.

01:27 Rhiannon: Hi.

01:28 Peter: Today's episode is Kelo 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 "a bunch of libs, millennial leftists" proliferating "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 majority. We also wanna 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.

[laughter]

02:15 Peter: So in this case, four liberals and Anthony Kennedy held that the city of New London, Connecticut could seize private property, including the homes of plaintiff Susette Kelo 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.

02:57 Rhiannon: Yeah.

02:58 Peter: 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. So Rhi, walk us through the background here. What's going on in New London, Connecticut?

03:27 Rhiannon: 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 re-activates this old private entity, it's a non-profit 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.

04:47 Rhiannon: So that development corporation created a development plan for the Fort Trumbull neighborhood. It was a big plan and it includes a resort hotel, a conference center, a state park, new plans for building a museum, 80 to 100 new residences, plus 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. So, 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 Susette Kelo. Susette Kelo is a working class person. Interviewers, reporters mentioned that she works two jobs, she had lived there since 1997. Another petitioner, for example, named Wilhelmina Dery, she was born in the house in 1918, the house that she lived in in Fort Trumbull...

06:09 Michael: It's fucking crazy. Yeah.

06:09 Rhiannon: She was born in that house and still lived there for her entire life.

06:13 Michael: Her husband had lived there for 60 years...

06:17 Rhiannon: Yes.

06:17 Michael: Their kids lived next door. They had roots.

06:20 Rhiannon: Yeah, these are lower class working class families and individuals. They had roots, multiple generations in and around this neighborhood, on their properties that they owned for decades. And so the petitioners here, they wanna keep their damn homes. 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.

06:52 Peter: Pretty much the same reaction I think anyone would have to the government just knocking on your door one day and being like, "Alright, you gotta leave." We're gonna...

07:00 Rhiannon: Right, exactly.

07:00 Michael: We're gonna build a conference center.

07:00 Peter: I don't know if you've heard about this but we have to help Pfizer out.

07:04 Rhiannon: Yeah, have you guys heard of a little company called Pfizer? They want your backyard.

07:08 Michael: Some little like podunk city councilmen who have boners over the idea that their town is gonna become this economic hub.

07:17 Peter: Yeah, we'll talk about this in a bit later, but the city council is the lowest form of government, right? I can't think of anything lower throwing the rocks at like...

07:28 Michael: School board, school board.

07:29 Peter: Yeah, school board. Wow, there you go.

[laughter]

07:32 Peter: Okay, I take it back, school board is the lowest form of government, but right above that is city council, so yeah, they're facing off with these homeowners and on their side is one of the biggest corporations in the world.

07:46 Michael: Yes, yes.

07:49 Peter: So the legal issue here is about the Takings Clause of the Fifth Amendment which states that, "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 you they can just take Susette Kelo'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 a public purpose. It doesn't need to be public use like a park, it's a little broader than that. It's 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 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 precedents and all that sort of stuff, that we're not gonna get too deep into 'cause it's pretty boring.

08:53 Rhiannon: Right, right.

08:53 Peter: But the fundamental...

08:54 Michael: And are not necessarily correct anyway.

08:56 Peter: 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."

09:20 Michael: Right.

09:21 Peter: But the new development isn't something that will be available for anyone to use, it's an office complex and some of it...

09:27 Rhiannon: Right, yeah.

09:28 Peter: It's nothing else, and if that's a public purpose, then what's a private purpose, right?

09:35 Michael: Right.

09:35 Peter: 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.

09:56 Rhiannon: Yeah.

09:56 Peter: They can make it more aesthetically pleasing, they could start a business there, whatever.

10:00 Michael: It's like making gentrification like a legitimate government end that justifies taking people's property, right, essentially.

10:07 Peter: Right.

10:07 Rhiannon: Right.

10:07 Michael: Originally, the Taking Clause started, it's like building railroads, 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 the extent that there wouldn't be direct public ownership, if there's a private ownership like a railroad, they would be common carriers where the public would have general access to them anyway, right?

10:37 Rhiannon: Right.

10:37 Michael: So the contrast between that and what's going on here is very obvious, you don't have to be trained in legal rhetoric or whatever to understand the difference between building the railroad and building a fucking office park.

10:51 Peter: 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 gonna gussy it up?

11:11 Michael: Right.

11:11 Rhiannon: Right.

11:11 Peter: 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.

11:22 Michael: Yeah, absolutely.

11:23 Rhiannon: 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, and he kind of throws it in at the end is if states wanna pass laws that are sort of 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... That's the only thing...

11:41 Peter: Exactly the type of fucking punt that we have lambasted to the conservatives for in the past.

11:47 Rhiannon: Exactly, right.

11:47 Michael: Or wonderful inversion, yeah.

11:49 Peter: Yeah, they're just like, "Well, look, this might sound crazy, but if they wanna 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 analyzing constitutional authority.

12:08 Rhiannon: Yeah, because you're not taking into account the major power imbalance, right? Think about Susette Kelo and Wilhelmina Dery. You know what I mean? Like how are they... What are they gonna do? Like, okay, well, we're gonna lobby the state legislator about this because Pfizer is knocking on the door of the city, it doesn't make realistic sense.

12:29 Peter: 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 major lobbying groups, etcetera, filed their briefs, and in this case, you see all the sort of Libertarian, usuals like Cato and all their friends filed briefs in support of the petitioners, but so does the NAACP.

13:19 Peter: And I think a couple of other civil rights organizations, supporting her case on the basis that these laws disproportionally impact minorities and the impoverished, not coming strictly from this property rights sort of viewpoint that someone like the Cato Institute is gonna have, but saying like, "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.

13:47 Rhiannon: Yeah, I think that's right.

13:48 Peter: And, I sort of would love to see a town just condemning wealthy neighborhoods...

13:53 Michael: What that would look like.

13:55 Peter: Just like, "Hey, we're gonna fucking wipe out these McMansions and just hand it over to a...

14:02 Rhiannon: To Chipotle.

14:03 Peter: Right, right we're gonna... Look an actual good use of the Takings Clause would be to wipe out some shitty development, hand them each a couple mil and be like, "Alright, we're building section 8 housing here, right?

14:13 Rhiannon: Yeah.

14:14 Peter: Never gonna happen. Can you imagine?

14:16 Michael: Or turn fucking golf club into a public park, that would be legit.

14:20 Peter: Yeah, yeah, yeah.

14:20 Rhiannon: Right.

14:20 Michael: But, would never happen. Can you imagine like scenario?

14:24 Peter: Like Roberts recuses himself because he's a member of the club.

[laughter]

14:29 Michael: Thomas, also a member of the club, does not recuse himself.

14:33 Peter: Right.

14:34 Rhiannon: Roberts is like optics guys, fair and impartial, I can't do it, and Thomas is like, "Fuck it, let's do it."

14:39 Peter: Yeah. And then it goes 8-0.

[laughter]

14:43 Peter: So, Thomas, Clarence Thomas writes... Sandra Day O'Connor writes the primary dissent here, but Clarence Thomas writes a more aggressive dissent, doing all his usual thing, which is like, in this case, sort of not wrong, it's the most I've ever agreed with him on one of his abolished this entire line of precedents sort of dissents, and he starts with 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, "Allowing the government to take properties solely for the public purpose is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionally 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." Spot on, the whole dissent could have been that.

15:41 Michael: Yes.

15:42 Rhiannon: Yes.

15:43 Peter: It's a viewpoint that Clarence Thomas will completely ignore and dismiss in every other case that ever finds its way to his desk.

15:49 Rhiannon: Correct, yes.

15:52 Peter: That's sort of an exaggeration, but he obviously finds this sort of thing very unconvincing in other circumstances. Still, unequivocally right here.

16:00 Michael: Yeah.

16:00 Peter: And Kennedy and the Liberals ignore all of this and just pretend it's not happening. We're gonna 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 bizarre.

16:14 Michael: It's hard to wrap your head around.

16:15 Rhiannon: Yeah.

16:16 Michael: I do wanna say, I remember thinking in law school that Thomas's dissent was strong, but some of the early stuff is 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 anybody finds it an interesting or persuasive argument at all, like what the dictionary said, the meaning of the word use was in 1780 or what the latin entomology of the word uses. Do we really need a page in the Supreme Court on that?

16:50 Rhiannon: Right, I think it makes it so obvious that this shit is all really fake, like I promise you it's fake.

16:57 Michael: Yes, yes.

16:58 Rhiannon: 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, "Oh, what did the dictionary say 200 years ago?"

17:13 Peter: Right.

17:14 Rhiannon: That's not a fucking answer.

17:15 Peter: It's also not their field.

17:16 Michael: Latin etymology.

17:16 Peter: Clarence Thomas doesn't know shit about what the fucking Latin etymology means to the point where he can make these fine distinctions.

17:25 Rhiannon: Right, right.

17:25 Peter: He's just rambling on about it. And I always imagine Susette Kelo herself reading... Someone's like, "Hey, this dissent really agrees with you," and she's just reading through the first eight pages of it like, "What the fuck is this?"

17:35 Rhiannon: Yeah.

17:35 Michael: What the fuck? What is this shit.

17:38 Rhiannon: Yeah, "This doesn't do shit for me."

17:40 Michael: It's so disconnected.

17:41 Peter: Yeah. And so, that's the first issue, was like, "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 rein 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 probably just eliminate this as a legitimate reason for a taking, under the fifth Amendment. I think that's right. This might be the... One of the few times where I'm just like, "Sandra Day O'Connor, right on the head," I think that's right.

18:43 Rhiannon: Right. I like her dissent here, maybe just 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, she calls out what is sort of facially obvious and ridiculous about Steven's 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?

19:22 Michael: Was it John...

19:23 Peter: 52? I don't know.

19:24 Rhiannon: It was William Rehnquist.

19:27 Peter: I was gonna say it could be Rehnquist, but I thought he was younger.

19:29 Rhiannon: William Rehnquist graduated first in the class, and our girl, Sandy, graduated second.

19:34 Michael: Damn.

19:35 Peter: Damn, beaten by Rehnquist, what a fucking moron.

19:38 Rhiannon: Can you...

[laughter]

19:41 Rhiannon: 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 shitty boss?

19:49 Michael: Can't get out of that guy's shadow, your entire life.

19:51 Rhiannon: Yeah. [laughter]

19:51 Peter: I know, right?

19:52 Michael: Jesus Christ.

19:52 Rhiannon: Yeah.

19:53 Peter: Yeah, that's gotta be rough. Sandra Day O'Connor, 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, you're just tough as fucking nails, if I had to guess.

20:13 Rhiannon: Yeah, I think that's absolutely right. But I think there's also probably something to be said about the conservatism too. She...

20:18 Peter: Oh, it helps. No doubt. I mean...

20:20 Rhiannon: Yeah, it helped her get to the level that she did.

20:22 Peter: It helped her. It helped Clarence Thomas, right?

20:25 Rhiannon: Exactly.

20:26 Peter: 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, maybe not knowingly or not intentionally, but was able to leverage to where she is.

20:38 Rhiannon: Sure. Yeah.

20:38 Michael: She had a couple of 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?

20:47 Peter: Right. [chuckle]

20:48 Michael: The New London Development Corporation had an economic development plan, and the Supreme Court puts a lot of weight on this fucking little town's corporation development plan.

21:00 Peter: Right.

21:00 Michael: And it's like, "Well, look, we got to defer on this." The dissent has some questions about that, and I think we also have some questions about that. 'Cause it's like, really...

21:08 Peter: Yeah. I think our questions are a little more pointed.

21:12 Michael: Yes.

21:12 Rhiannon: Yeah. [laughter]

21:12 Michael: The Supreme Court...

21:13 Peter: Do you need to fucking defer to the City Council of New London, Connecticut when you're the Supreme Court? How much deference do these people really deserve?

21:21 Michael: Yeah. And like... Kennedy is like, "Look, if there is any evidence of untoward influence by private parties on the City Council, that should be considered." And I forget if it was O'Connor or Thomas who was like, "You'd have to be a fucking idiot to be able to avoid like... "

21:40 Peter: Of course, they're influenced by Pfizer's fucking pride.

21:43 Michael: Right.

21:43 Peter: The guy that they meet with from Pfizer who walks in and is like, "Hey wouldn't... Here's our pitch." That guy is the most powerful person that city councilman has ever met in his life. [chuckle]

21:52 Michael: Right.

21:53 Rhiannon: Right, right. It's a city of 20,000 people at about the year 2000, and Pfizer is saying like, "$350 million facility, we're gonna build it in your backyard." What are they supposed to do? Of course, they're gonna, you know.

22:06 Michael: You don't need a private eye with a telephoto lens taking pics of city councilmen taking a briefcase in a dark alley or whatever, right?

22:14 Peter: Right.

22:15 Michael: The influence is out in the open. It's obvious. It's ridiculous.

22:19 Peter: And that's why there needs to be some substantive check against the ability of some city, some random politicians and some city to just seize the property of the poorer citizens. 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... We're gonna 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."

[laughter]

22:56 Peter: I don't know what Pfizer was doing at the time.

[laughter]

23:00 Michael: The other point the dissent makes that I just wanna mention really quick is like, if you can do all these formalistic, "Oh, the precedent says this." and like, "The law says that bullshit." You, at least, need to do it well.

23:14 Rhiannon: Get it right.

23:15 Peter: Yeah.

23:15 Rhiannon: Yeah.

23:16 Michael: And the majority relies on two cases, and one of them is in Hawaii when Hawaii first became a state and only 22 people owned almost all the property on one of the islands. So the state used eminent domain to take it because they're like, "This is essentially monopoly and it's distorting the real estate market." Right?

23:36 Rhiannon: Right.

23:37 Michael: And handed it over to private individuals. And O'Connor is like, "Look, the public purpose here was divesting these monopolists of property." Doesn't matter that it was handed over after the fact that was the public purpose and you're totally missing the obviousness of this case. And the majority has no answer for that. It's the most backwards reading of the case, which... It's like if that's all you have, you at least gotta get it fucking right, man.

24:05 Peter: Right. This is why it's such an inversion of a lot of the cases we've tackled, 'cause the conservatives in dissent are just like, "Can we approach this with the least bit of fucking nuance?"

24:14 Michael: Right.

24:14 Rhiannon: Right.

24:16 Peter: And the majority is like, "No. Actually, we're gonna take this weirdly hard line on it." Which is really... I don't wanna paint with too broad of a brush, but that's usually the conservative approach.

24:25 Michael: Yeah. Kennedy's 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 libertarian ideas...

24:35 Peter: Yeah.

24:36 Michael: Which are very centered on property.

24:37 Rhiannon: Yeah.

24:37 Michael: Property ownership and property rights is the heart of libertarian ideology. And here he is just shrugging his shoulders at it getting fucking trampled on, whereas less-libertarian conservative colleagues are like, "This is too much."

24:50 Rhiannon: Yeah.

24:50 Peter: No, it is weird. And he is... I think if you ask most people who's, like, who are the more libertarian justices over the past 25, 30 years, he'd be up there.

24:58 Michael: Right.

24:58 Rhiannon: Yeah.

25:00 Peter: I think that's why he writes the concurrence. And the concurrency rights, it's basically just these proposed limitations on the power to try to assuage people, I think, that this won't be too bad. But it's total... Yeah, my eyes glazed over real quick. I didn't get through it.

25:14 Michael: Yes. [chuckle] Yeah, yeah, I know. I get that.

25:15 Peter: I was like, "I was skimming pretty bored, pretty bored." So sorry. You can go to another podcast where they read everything.

[laughter]

25:23 Peter: If you wanna hear about that shit.

[laughter]

25:25 Peter: Look, before we move on to what happened in New London, Connecticut after this case, I wanna leave you with one quote from the dissent, which is Sandra Day O'Connor saying, "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 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 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.

26:09 Michael: Yeah.

26:09 Rhiannon: Yeah, exactly.

26:10 Peter: So Rhi, how did it go with New London?

26:14 Michael: Tell us about the corporate utopia that this ushered in to the city of New London.

26:18 Rhiannon: Wait, yeah. Wait, do I sense sarcasm? Do you guys not trust that Pfizer really came in and spruced up the place?

26:22 Peter: We imagine that our listeners have heard of the utopia in New London, Connecticut these days.

[laughter]

26:28 Rhiannon: Right.

26:28 Peter: But fill us in on the details.

26:30 Rhiannon: Yeah, so this case took five years. So it started in the year 2000 when Susette Kelo and the petitioners refused to sell to the city and... The Supreme Court decision after going to the Connecticut Supreme Court, etcetera, the supreme court decision was handed down in 2005. So immediately after the decision is handed down in 2005, after the city takes its W, they turn around and announce plans to charge the residents for back rent for the past five years.

27:01 Michael: Fuck.

27:02 Rhiannon: Saying that the petitioners had been on condemned city property the whole time and that they owed the city, tens of thousands of dollars.

27:09 Michael: That's so fucked.

27:10 Peter: It's like... Just no mercy.

27:12 Rhiannon: Right? Exactly.

27:12 Peter: Just relentless.

27:13 Rhiannon: That lawsuit is eventually settled and the city agreed to pay some additional compensation to the homeowners as well as physically moving Susette Kelo's house. So in terms of the development that happened in the Fort Trumbull area... Listener, you're gonna 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... A majority of the area remains undeveloped, and so the city 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 that...

28:11 Peter: I thought you were gonna say the value went up after Hurricane Irene.

28:14 Rhiannon: No. No. No.

[laughter]

28:14 Rhiannon: The city made it a dump.

28:15 Michael: God.

28:16 Rhiannon: Okay, but what about Pfizer then? I mean, Pfizer had that $350 million research facility, right?

28:22 Michael: Massive. Yeah.

28:23 Rhiannon: 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.

[laughter]

28:35 Rhiannon: 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.

[laughter]

29:00 Michael: Jesus Christ.

29:00 Peter: Oh my god.

29:01 Rhiannon: Yeah, not to mention the cost and judicial resources and all of this, of taking this all the way to the Supreme Court.

29:05 Peter: Right and the fucking tax breaks for Pfizer which must have been ungodly...

29:07 Rhiannon: Yeah. Right. Exactly.

29:09 Michael: They paid 20% property tax on 20% of the value of the property for a decade.

29:15 Rhiannon: Yeah. So Susette Kelo, 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.

29:49 Peter: Yeah. She's cool.

29:50 Michael: There's another quote, sorry, I wanna add really quick...

29:53 Rhiannon: Please.

29:53 Michael: This was from a retrospective in the New York Times, the city councilman who was set to become New London's mayor, in 2010, talking about Pfizer leaving, says, "Basically, our economy lost 1,000 jobs, but we still have the building."

[laughter]

30:09 Michael: Then he added, "I don't know who's going to be looking for a building like that in this economy."

[laughter]

30:15 Rhiannon: Oh my god.

[laughter]

30:18 Peter: Yes. That's the sort of can-do attitude it takes to be the mayor of New London, Connecticut folks.

30:23 Michael: Yeah. There you go. So, they have a massive empty building with nothing to do with it in a dying town.

30:31 Rhiannon: Yes, surrounded by an empty lot that's on and off used as a dump after natural disasters.

30:36 Peter: Are there any other companies here that have 25,000 employees that could...

[laughter]

30:41 Peter: Spare a few?

[laughter]

30:43 Michael: There are eight corporations in the world that could make use of this facility.

[laughter]

30:50 Rhiannon: Right.

30:50 Peter: 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...

31:09 Rhiannon: Yeah.

31:09 Peter: 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?

31:27 Rhiannon: Yeah.

31:27 Michael: Right.

31:27 Peter: And this happens with some frequency. So in 2017, the electronics manufacturing giant, Foxconn, announced that it was gonna 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 hold outs, the usual story. The kind of twist here is that in the wake of Kelo, a lot of states passed laws saying that economic development was no longer a valid reason for the government to use eminent domain.

32:04 Michael: Right.

32:05 Peter: Wisconsin was one of those states. So you can't seize it. Right?

32:09 Michael: Right.

32:09 Rhiannon: Wrong.

[laughter]

32:10 Peter: Mount Pleasant re-zones the properties to call them business districts.

32:16 Rhiannon: Ay ay ay.

32:17 Peter: And then...

32:18 Michael: Yeah.

32:19 Peter: 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 dilapidated or otherwise in poor condition.

32:35 Michael: Right.

32:35 Peter: Which would usually mean something that is falling apart.

32:38 Michael: Right.

32:39 Peter: In the context of a business district, however, residential homes may be arguably deemed...

32:45 Michael: Right.

32:45 Peter: Blighted.

32:46 Michael: Yeah, it becomes like a formalistic, sort of, precisely the type of legal bullshit we despise on this podcast.

32:54 Peter: So they declare them blighted and kick the residents out. Foxconn is doing there, what many corporations do in this situation. Right?

33:03 Rhiannon: Yeah.

33:04 Peter: Wield the possibility of enormous investment and jobs above a municipality that is not in any position to realistically say no.

33:11 Michael: Right.

33:12 Rhiannon: Right.

33:12 Peter: And they leverage that position to get what they want at the expense of the community, and the risk is borne entirely by the community.

33:20 Michael: Yeah.

33:20 Peter: Just like Pfizer backed out in New London, Foxconn has dramatically scaled back its plans, I think it's down to 1,000 jobs now. And just 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.

33:38 Michael: Yeah, and so it's not just small local governments that get bulldozed here, sometimes this happens in cooperation with big powerful city governments.

33:49 Rhiannon: Yeah.

33:50 Michael: 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 a great subway stop with 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 buy people out and there was a rail yard there and things like that, so he bought the New Jersey Nets and then...

34:27 Rhiannon: Oh.

34:27 Peter: Used... 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...

34:39 Peter: Classic moves. All classic moves. You know those moves. You buy the sports team...

34:43 Rhiannon: Right. Yeah [laughter]

34:43 Michael: Right. Yes.

34:44 Peter: You can dangle the arena over their heads 'cause I've done this many a time.

[laughter]

34:47 Rhiannon: Right.

34:48 Michael: Right. He built his highrises 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 highrises and the neighborhood is wiped out.

35:00 Rhiannon: Bruce Ratner is an insane evil billionaire name.

35:06 Michael: It's Bond villain level.

35:08 Rhiannon: Right. Yeah.

35:08 Peter: Yeah, yeah.

35:09 Rhiannon: Yeah.

35:10 Michael: The other example... It's Columbia just... I think in a previous episode, we mentioned the idea of universities being real estate hedge funds, essentially. And Columbia is...

35:18 Peter: Yeah, yeah, yeah.

35:18 Michael: I think, 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 hold outs waiting till the entire neighborhood that they own 80% of gets completely run down because it's all abandoned buildings.

35:36 Peter: Yeah, yeah.

35:36 Rhiannon: Right, right.

35:36 Michael: 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, 'cause they bought the only laundromat and left it vacant. And then using that to bully out the hold outs so that they can develop a new campus up in West Harlem. So of course, the people that Columbia is displacing here are minorities and working class people, or middle class people. It's like... And 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 out there... And the laundromat example I gave was not abstract, there were people complaining that they no longer had access to laundry.

36:25 Rhiannon: Right.

36:26 Peter: Right.

36:27 Michael: 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 $11 billion endowed University that serves mainly the rich.

36:48 Rhiannon: Right.

36:48 Peter: Right. And they're using a justification that's like... The whole idea of public use is the sort of implication that this will be beneficial for the community.

36:56 Michael: Right.

36:56 Peter: As if these people aren't part of it. And as if the idea that 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 the growth of the community rather than just their own private goals. It's ridiculous.

37:19 Michael: Right.

37:19 Rhiannon: Yeah.

37:19 Michael: Yeah. I don't believe New York ever passed a law in the wake of Kelo, but I'm not sure it matters.

37:24 Peter: No I don't think so.

37:25 Michael: Because as all this seems to have happened...

37:27 Peter: Yeah, it's... And you just figure out little ways around it.

37:30 Michael: It's like local politicians... Like, Bloomberg... My recollection is... Was very much behind Ratner's project with the Nets and... It's like...

37:39 Peter: Yeah, what can you... When that much money starts accumulating behind something...

37:44 Rhiannon: Exactly.

37:44 Peter: Power will follow.

37:45 Michael: Yeah.

37:45 Peter: And there's only so much you can do, especially when the only people standing in the way here are gonna be homeowners that very rarely have any means.

37:54 Rhiannon: Right.

37:54 Michael: Right.

37:55 Peter: 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. And...

38:09 Michael: Yes.

38:10 Rhiannon: Yes, that's so smart.

38:12 Peter: 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 and they would be forced to actually pay. But no city councilman... Again, just a step above the school board.

[chuckle]

38:30 Peter: No city councilman is ready to tread that ground.

38:34 Rhiannon: Why don't you run Peter.

38:35 Peter: For school board? I'm going to.

[laughter]

38:43 Peter: So I think that, kind of, our last thought here is a retrospective of sorts on what the fuck happened to the liberals here.

38:51 Rhiannon: 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 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. That's not the goal of what they're doing.

39:11 Peter: I've been thinking about this 'cause 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.

39:34 Michael: Right. There's a negative partisanship.

39:36 Rhiannon: Yeah.

39:36 Peter: Yeah. They were like, "Well, look, I don't really know about this, but if Cato is like filing lengthy briefs and writing teary op-eds about it then surely we've gotta 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. And they...

39:57 Michael: And almost...

39:57 Peter: Engage in this sort of bullshit formalistic precedent heavy, de-contextualized analysis that is just like the exact thing that conservatives do consistently, and when they're at their weakest. Someone like Ginsburg notorious for starting her opinions with the context rather than legal rules, and she's quiet here. It's bizarre to me.

40:22 Michael: Yeah, no, I do think it's almost a painfully naive trust in government at any level on any subject that 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, that's who you are.

40:43 Rhiannon: Right. Right. Yeah, exactly. Worth noting too, I think, that in his autobiography, John Paul Stevens, he doesn't say it explicitly, not strongly, but says, "This opinion is kinda fucked up, and I 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.

41:18 Peter: Yeah, that makes me more upset. That's...

41:21 Rhiannon: Yeah.

41:22 Peter: It's the complete opposite. The use of precedent is completely irrelevant and tangential.

41:27 Rhiannon: Right. That's so fucking liberal.

41:28 Peter: It is like, "Oh, sorry, we used the wrong rules."

41:31 Rhiannon: Yeah, exactly. Yeah. [laughter]

41:32 Peter: But also, the precedent was the, 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.

41:43 Michael: Right, right.

41:44 Peter: 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 national security and immigration. And perhaps some application of that skepticism that you see in Kelo 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.

42:19 Peter: Here's the liberals doing what we say that the conservatives do often, rigidly applying precedent without any real inspection of the context, because that's what gets them to the conclusion that I think that 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 wanna view it, you can take a step back and dismiss the ostensible reasons provided by these incredibly powerful hacks.

43:07 Michael: Yeah.

43:07 Rhiannon: Yeah.

43:07 Michael: 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... Wandering off into the wilderness with this shit.

43:30 Rhiannon: Yeah. Anthony, come back? You okay? Somebody check on Anthony.

43:34 Peter: Yeah, 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 fancy degrees mean absolutely nothing or whatever. He's smart in some ways that you're probably not, but he is fundamentally, in many important ways, not the sharpest fucking tack. You don't need to look that much more into it.

44:06 Michael: It might legit be that he's been like, "Wow, that neighborhood would look really nice with a conference center."

[laughter]

44:13 Michael: There might not be more to it than that.

[laughter]

44:18 Peter: Yeah. The day will come we'd do an entire episode on Anthony Kennedy. He really is the Supreme Court's goofy dumb uncle. He's such a weirdo, and he held this court under his yoke for 25 years.

[laughter]

44:33 Michael: Yes.

44:35 Peter: It's unbelievable.

[music]

44:46 Peter: Alright, next week is DC v. Heller.

44:50 Rhiannon: Boom.

44:51 Peter: That's a big one. Second Amendment case from 2008, Gun rights, Antonin Scalia, all coming together in one beautiful package.

45:02 Rhiannon: I don't want to read this again.

45:06 Peter: You're gonna read it. You're gonna read it, Rhiannon.

45:06 Rhiannon: Fuck.

45:12 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova, with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.

45:36 Leon Neyfakh: From the Westwood One Podcast Network.