Category: 
by C. William Chattin
Hector, the parties in Didden submitted their briefing materials to the Second Circuit before Kelo was handed down; but, the Court (Sotomayor) - properly, in my estimation - waited until months after Kelo to issue the Didden decision. Thus, the attorneys for Didden didn’t have the benefit of knowing what governing standard would be applied to their challenge at the time they submitted their materials to the Court.
In any event, regardless of the adequacies/inadequacies of the briefing materials (and arguments advanced, or not advanced, therein), the Court (i.e., Sotomayor) was duty bound to search the record to ensure the taking in question accorded with the standards set forth by Justice Steven’s opinion in Kelo.
Obviously, Sotomayor was aware that the City of Port Chester’s taking appears to have been consequenced by the plaintiffs’ refusal to pay a bribe. And, of course, Justice Steven’s cautionary mandate about “pretextual takings” was likewise available to Sotomayor at the time she issued her opinion. And yet, not only did she fail to connect those obvious dots, she non-chalantly declined to conduct any analysis at all, and summarily sanctioned a seizure of private property for failing to pay extortion money.
In sum, you’re giving a Second Circuit (and, soon to be, Supreme Court) justice with virtually unlimited resouces, including a team of Yale/Harvard/Columbia/NYU -educated law clerks, far too much deference. If Sotomayor’s decision was actually predicated on substandard advocacy on the part of Didden’s lawyers, she should have said exactly that in her opinion, so the precedential effect of the case would have been clear.
Instead, her opinion reads as though any State taking in the Second Circuit, even in retaliation for not paying bribe money, is beyond judicial scrutiny. It’s a horrendous opinion, and falls far below the standards we should expect of a Second Circuit, let alone Supreme Court, justice.
