Category: 
by C. William Chattin
Hector, with regard to the statute of limitations predicate, I will assume, without checking, that Sotomayor got that portion of the opinion, and, thus, the actual result, correct. However, because she weighed into the constitutional issue with more than mere dicta, she provided a legally-binding, alternative holding of the Court…on a very dicey issue without undertaking any actual analysis, which is my biggest gripe.
While Kelo is both an utter abomination and perhaps the most dangerous decision of the last 50 years, Justice John Paul Stevens, in his majority opinion, at least provided some thresholds standards that the State must meet in order to lawfully seize your property: Justice Steven emphasized that “the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit,” does not constitute “a public use” so as to make a “taking” bona fide.
The most disturbing aspect of Didden, issued just months after Kelo was handed down, is that Justice Sotomayor makes no reference to Justice Steven’s proviso, conducts absolutely zero analysis, and, in effect, treats Kelo as though it held that every government taking is bona fide and completely insulated from judicial scrutiny.
Of course, what we actually know about Didden is that the taking reeks of pretextualism — Didden’s property was condemned only after, and apparently in retaliation for, Didden’s refusal to pay a bribe to the City’s hand-picked developer to the tune of $800 thousands, plus a share of the business. And yet, Judge Sotomayor provides an analysis-free imprimatur of what appears to be a patently pre-textual taking of private property by an extortionary private developer. That Judge Sotomayor will now be rending these types of opinions while sitting on the Supreme Court troubles me greatly.
Briefly, on cert. before the Supreme Court: if the Court is not inclined to hear the case, it’s most likely because there is another (indeed, primary) basis for the decision: the statute of limitations issues, such that the Court’s holding would not ultimately affect the result. But, that doesn’t give me any more comfort as it relates to Sonio Sotomayor.
