KOHL: Many people, including a majority, I believe, of people in my state, as well as myself, were quite disturbed by this ruling which appears to place much private property at risk by greatly expanding the eminent domain powers of local government.
We discussed this when you were in my office, and you told me that you were, quote, "surprised," by the decision. So could you expand on it a bit this afternoon and explain why you were surprised?
ROBERTS: I did tell you that was my initial reaction. I remember hearing about the decision driving, actually, back from a judicial conference with another judge.
And we all learn in law school the first, one of the first cases you study is called Calder against Bull. It has a basic proposition: The government can't take property from A and give it to B.
When I read the decision, I understood what the majority's position was: the difficulty of drawing a line between things that are obviously public use like a railroad, a road, things that are traditionally the subject of the exercise of eminent domain, and other activities that are not as clearly within that range.
Of course, Justice O'Connor in her dissent thought the line could be drawn between whether it was available to the public or not, and that certainly was available. The majority did say that it was not rule on the starkest example, in other words just determining to take the property from A to B because you think B could make better use of it.
The issue arose, as you noted in your question, in the context of an urban renewal redevelopment project, and that may be limited to that context or may not.
I do know there's been extensive legislative reaction to the decision. I know a number of states have passed laws already saying we do not authorize the use of the power of eminent domain to take for a use that's going to be from one private owner to another. And that's certainly an appropriate reaction to a court's decision in this area.
What the court is saying, what the majority is saying, is because of the difficulty of drawing a line, this issue is really left up to the legislature. And if the legislature wants to draw the line in a particular place, it has that authority.
But it certainly is a decision that was closely divided, 5-4, and it has gotten a lot of legislative reaction.
The point I would only make is perhaps it's a good example of the fact that legislators have a responsibility to protect the rights of the people just as much as courts.
And one way they can protect the rights of the people in this area, if they think it appropriate, is to restrict themselves in saying, we will not use the imminent domain power to the broadest extent that the Supreme Court has said we are authorized to do.