Souter’s shame

 

By George W. Shuster

A word of perspective needs to be added to the fawning chorus that has arisen upon the recent death of former U.S. Supreme Court Justice Souter.

Souter’s legacy was severely compromised by his embrace of the outrageous Kelo decision of 2005.

Up until that time, it had been understood that the protections of the Fifth Amendment’s “takings clause” meant that a U.S. citizen’s property could only be seized by the government for a public purpose, such as a road or canal.

In Kelo, Souter joined the four other most liberal justices to hold that the homes of over seventy residents of New London, Connecticut, could be taken from them in order to give the land to a more-favored private party, in this case, the Pharma-Giant Pfizer.

Image by Matthew Hutchins of the Harvard Law Review. CC BY 2.0.

Souter did so over the vigorous dissent of the four most conservative justices on the Court. In addition to its violation of what had always been the essence of the “takings clause,” the Kelo majority decision was one of the most poorly reasoned decisions ever rendered by the Court.

The liberals gave two basic “reasons” for their 5-4 decision. They said it was justified because the government officials had written a report concluding that the seizures would be a good thing. As Justice O’Connor pointed out in dissent, however, such a report could always be written, even by a reasonably intelligent middle-school student.

The second “reason” was that supposedly no one knew who the private party beneficiary was going to be. Not only was that claim a bald-faced lie, but it was irrelevant even if true. If a thief broke into your home to steal your possessions, which would be better: a robber with a ski mask or one you could identify?

The Kelo decision was so outrageous that many states responded by passing laws and even state constitutional amendments clarifying that, whatever the five liberals may have declared acceptable in the Land of the Free, the state in question would never engage in such an outrage.

Sadly, in the end, Pfizer did not even use the property. The place where all the houses were razed at taxpayer expense was, for almost 20 years, an empty weed-strewn field, with a small plaque commemorating the bravery of Mrs. Kelo and her neighbors in resisting this governmental abuse of power.*

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* In May 2022, there were reports that a private developer was building high-density apartments on the site.

https://www.americanthinker.com/blog/2025/05/souter_s_shame.html