NOTHING REMARKABLE ABOUT IT:

Losers at high court find they rule supreme in states: Land-seizure and racial-policy foes get measures passed. (David G. Savage, 1/07/07, Los Angeles Times)

For activists who seek to change the law, sometimes nothing works better than losing a big case in the Supreme Court.

In the last year, two small public-interest law firms converted Supreme Court losses into wins in the court of public opinion, with state legislatures and ballot initiatives essentially skirting the rulings.

The libertarian Institute for Justice in Arlington, Va., made a cause out of the "abuse of eminent domain," referring to the government's power to seize and condemn private property.

The Center for Individual Rights in Washington, which is dedicated to "getting government out of the business of classifying citizens based on race," targeted affirmative-action policies at colleges and universities.

The eminent-domain cause took off two years ago when Institute for Justice lawyers appealed to the Supreme Court in the case of Susette Kelo, a nurse from New London, Conn., who fought to keep her small, pink, wood-frame house with its view of Long Island Sound. City officials had condemned it and neighbors' houses because they wanted to redevelop the area with upscale townhouses, a shopping area and a hotel.

The institute's lawyers argued that the Constitution allows the government to seize property only for "public use," such as to build a road, and not for private development. But the justices decided, 5-4, that local officials could "promote economic development" in a "distressed" community even if it meant condemning homes.

The June 2005 ruling set off a political earthquake. On Dec. 18, the institute reported that 34 states had tightened laws to make it harder for city officials to take private property for development.

"This is a remarkable and historic response to the most reviled Supreme Court decision of our time," the institute said.

Kelo was good law, but bad politics. It's being dealt with in the political sphere. That's how the system is designed to work.

Posted by Orrin Judd at January 7, 2007 9:49 AM