As an attorney in the George W. Bush administration, Judge Neil Gorsuch, savaged the Supreme Court decision in Kelo v. City of New London, a landmark property rights case, and lavished praise on Justice Clarence Thomas’s dissent.
The Kelo decision is among the most famous cases of the last decade. The 2005 ruling allowed the city of New London, Conn. to seize private property under the Fifth Amendment’s takings clause for private development, in hopes a public benefit would ensue. Justice John Paul Stevens wrote the opinion for a five-justice majority. Thomas filed one of the two dissents in the case.
New emails show that Gorsuch was extremely dubious of the Kelo holding and praised Thomas’s dissent, according to CNN.
At the time the opinion was handed down, Gorsuch was a lawyer at the U.S. Department of Justice. Gorsuch sent an email to two friends praising Thomas’ opinion.
“I am blown away by Thomas’ dissent,” Gorsuch wrote.
“Brilliant stuff that completely demolishes the majority,” he continued. “Reminds us of the plain textual meaning of the Constitution and then breathes life and vital purpose into it, explaining the weaknesses of misguided judicial glosses.”
As professor Ilya Somin of George Mason University School of Law explains, the decision animated outrage from constituencies across the ideological spectrum:
Conservative originalists like Gorsuch and Thomas are not the only critics of the Kelo decision. The ruling was also denounced by many liberal living constitutionalists, including Ralph Nader, the NAACP, Howard Dean, and even socialist Bernie Sanders. That’s because economic development and “blight” condemnations tend to victimize the poor, racial minorities, and the politically weak for the benefit of politically connected developers and other powerful interest groups. It is no accident that Kelo generated a massive political backlash that cut across conventional partisan and ideological lines.
The emails are not particularly surprising, as Gorsuch’s sympathies as regards Kelo are fairly easily divined. However, such a candid insight into a Supreme Court nominees thinking about a controversial precedent is a rare in a confirmation process that incentivizes evasiveness.
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