He starts off lauding Justice Sandra Day O'Connor's vociferous dissent:
Judicial opinions are often dry and pedantic exercises in jurisprudence. O'Connor's dissent in Kelo, however, is a clear warning for all American citizens and a wake-up call for lawmakers in state capitols and in Washington.
"Under the banner of economic development," O'Connor writes, "all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded — i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public."
In contrast to Gurwitz, I see this much-publicized statement of O'Connor's as overly alarmist and misleading, as if the Kelo decision represented a great departure from previous use of eminent domain. For many decades, governments have had the power to seize private property from individuals, with "just compensation," and then do as they wish with it, including handing it over to other individuals. All that was needed was the say the magic word "blight," as Kevin Drum pointed out a few weeks ago:
[T]he definition of "blighted" has been pretty elastic for a long time. In Los Angeles, the poor-but-not-especially-blighted Chavez Ravine was condemned in the early 50s for a public housing project, but eventually the land was turned over to Walter O'Malley in order to build the privately owned Dodger Stadium. Similarly, in the early 90s, the Texas legislature created a special agency for the sole purpose of condemning land in Arlington so that the city could build a sparkling new stadium for George Bush's Texas Rangers. The Rangers were given control over the stadium and its surroundings plus an option to buy it later at a sweetheart price.
So the Kelo decision didn't change anything fundamental. On the contrary, if the Supreme Court had ruled as O'Connor would have liked, they would indeed have changed something very fundamental. They would have usurped the power to decide what is an appropriate public use away from the representatives of the people.
Despite his praise for O'Connor's alarmist views on this decision, Gurwitz apparently recognizes that it made some sense. Further down, he says:
Writing for the majority, [Justice] Stevens allows, "Nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power." While [Justice] O'Connor correctly sees this as an abdication of the Supreme Court's responsibilities, it does offer a legislative way out of this public takings wilderness.
Despite his instinctual unease, Gurwitz does appear to get the basic point of the majority decision: "a legislative way out."
Amazingly, Gurwitz concludes by actually shooting down O'Connor's alarmist opinion. Although I am not sure he realizes he is doing so.
As O'Connor succinctly notes, "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."
Nothing, that is, other than the ability of elected officials to correct the opinion of five Supreme Court justices.
I would have put it as "Nothing, that is, other than the ability of elected officials to fulfill their responsibility to the public, as our system of government is designed." But I'll take what I can get. He's on the right track.