If a state Supreme Court judge approaches a journalist at a private dinner and says something newsworthy about an important decision, is the journalist free to publish the statement?For those not familiar with the case, the city of New London condemned the Kelo's house (as well as others) using eminent domain, not because they needed the land for a governmental function, but rather so they could sell it to a commercial developer, in the belief that it would benefit the community economically.
I faced that situation at a dinner honoring the Connecticut Supreme Court at the New Haven Lawn Club on May 11, 2010. That night I had delivered the keynote address on the U.S. Supreme Court's infamous 5-4 decision in Kelo v. New London. Susette Kelo was in the audience and I used the occasion to tell her personal story, as documented in my book "Little Pink House."
Afterward, Susette and I were talking in a small circle of people when we were approached by Justice Richard N. Palmer. Tall and imposing, he is one of the four justices who voted with the 4-3 majority against Susette and her neighbors. Facing me, he said: "Had I known all of what you just told us, I would have voted differently."
I was speechless. So was Susette. One more vote in her favor by the Connecticut Supreme Court would have changed history. The case probably would not have advanced to the U.S. Supreme Court, and Susette and her neighbors might still be in their homes.
The Kelo's sued the city, and lost at the State Supreme Court level. The US Supreme Court also sided with the city in a 5:4 decision, in which Anthony Kennedy sided with the liberal wing of the court.
The planned development failed, and was left as an empty lot.
The judge has since partially retracted his aplogy:
“Those comments,” he wrote, “were predicated on certain facts that we did not know (and could not have known) at the time of our decision and of which I was not fully aware until your talk — namely, that the city’s development plan had never materialized and, as a result, years later, the land at issue remains barren and wholly undeveloped.” He later added that he could not know of those facts “because they were not yet in existence....”
Ilya Somin at the Volokh Consipracy argues that Judge Palmer let himself off too easily:
Justice Palmer lets himself off the hook too easily. It is true that the justices could not have known for certain that the Kelo condemnations would fail to produce the economic development that supposedly justified the use of eminent domain in the first place. But they could and should have known that such results have often occurred in similar cases, that the New London development plan justifying these particular condemnations was flimsy, and that there was no legal requirement compelling either the city of New London or the new private owners of the condemned property to produce enough development to offset the destruction caused by the takings. Some of these points were in fact noted in Justice Zarella’s dissenting opinion in the Connecticut Supreme Court.It seems that Kelo vs. New London will continue to be a touchstone of liberals belief in the rights of a strong government versus the libertarian and conservative beliefs in the dominance of individuals and property rights over the whims of government.