The 5-4decision by the Supreme Court in Kelo v. New London allowed for private lands to be confiscated for private economic development. The public outcry in response to Kelo demonstrates the opposition of a majority of Americans to eminent domain takings and property rights abuses. Now with the retirement of Justice David Souter and the recent nomination of Sonia Sotomayor many are wondering where she might fall in respect to property rights. Well, if this article in Forbes by Richard Epstein is any indication, it’s not looking good.
Epstein looks at the Second Circuit case Didden v. Village of Port Chester in which Judge Sotomayor was a panelist. As Epstein explains:
The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The "or else" was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: "We agree with the district court that [Wasser’s] voluntary attempt to resolve appellants’ demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation.”
It appears that Sotomayor may have even less respect for property rights than the justices who voted against Suzette Kelo. Americans from around the country continue to voice their strong opposition to eminent domain abuse. As the nomination moves forward, Senators would do well to scrutinize this case and any others like it.