Dahlia Lithwick speaks into a microphone when testifying to the House Judiciary Committee.Dahlia Lithwick of Slate filed this report on the Kelo v. City of New London oral arguments. Unfotunately Lithwick’s predictions mirror those of Marty Lederman.

Justice Ruth Bader Ginsburg points out that the city is depressed; what’s wrong with efforts to “build it up and get more jobs?” Bullock says the condemned land in Berman was “blighted,” but this land is merely depressed. O’Connor, never one to tip her hand too early at argument, asks Bullock “What standard should we use to second-guess the legislature?” Bullock insists that once condemned land is passed off to private developers, it’s no longer going to “public use.” Justice Anthony Kennedy interrupts to observe that “everybody knew private developers were the beneficiaries” when slums were condemned in Berman.

And then there’s this.

Justice Antonin Scalia asks what difference it makes that New London is depressed. What if a city acknowledged that it wasn’t doing badly, but just wanted to condemn land to attract new industry? He describes Horton’s position as: “You can always take from A and give to B, so long as B is richer.” And O’Connor offers this concrete example: What if there’s a Motel 6 but the city thinks a Ritz-Carlton will generate more taxes? Is that OK?

Yes, says Horton.

“So you can always take from A and give to B if B pays more taxes?” asks Scalia.

“If they are significantly more taxes,” says Horton.

I’m speechless. Read the whole thing here. As the Iconic Midwesterner puts it, “Welcome to serfdom…”

UPDATE: Here’s the WaPo story.

wapo logo 2“What this lady [Kelo] wants is not more money,” Justice Antonin Scalia said. “She says I’ll move if it’s for the public good, but not just so that someone else can pay more taxes. This is an objection in principle that ‘public use’ in the Constitution seems to be addressed to.”

UPDATE II: Like Prof. Bainbridge says, “It’s a moral outrage.”

Wow. The arrogance is breathtaking. Other than his presumably grudging acceptance of the Constitutional requirement that the city pay fair market value for the land, the city’s counsel – one Wesley W. Horton – would make the creators of the old Soviet kolkhozy proud.

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