Part 27 (1/2)

Even after he hung up, Londregan couldn't stop fuming. He had heard and seen enough of Bullock. The legal dispute had crossed over into a personal one. More than ever he wanted to beat this guy.

Bullock felt the same way about Londregan.

39.

THE SUPREMES.

It took Wes Horton thirty years to have a case before the U.S. Supreme Court. The opportunity would probably never come again, and he prepared accordingly. His secretary cleared his calendar for two months prior to the oral argument. His law partners took over all his other cases. And he locked himself away to research, write, and strategize.

A talented tactician with no emotional investment in the consequences of the case, Horton set aside his personal feelings about eminent domain, the city, the homeowners, and the media. He focused on one thing and one thing only: getting five of the nine votes on the Supreme Court. That's all he needed to win, nothing more and nothing less.

Going in, Horton figured he had four votes from the Court's liberal justices: John Paul Stevens, David Souter, Stephen Breyer, and Ruth Bader Ginsburg. He expected they would side with the city's argument that by creating jobs and generating tax revenue from the development, the city would lift the poor. Horton didn't worry about these four justices. Nor did he bother with the Court's three conservative justices, William Rehnquist, Antonin Scalia, and Clarence Thomas-he figured they would vote Bullock's way. That left Sandra Day O'Connor and Anthony Kennedy. In Horton's mind, they were the swing votes. If he could get just one of them to accept his argument, he had the case won. He geared his entire oral argument to appeal to O'Connor and Kennedy.

Studying both justices, Horton determined they were less dogmatic and more likely to ask fact-based questions concerning the New London case. He figured he should do something unusual-prepare a blow-up diagram of the neighborhood and use it to show the justices exactly what the city planned to do in the Fort Trumbull neighborhood.

Along with his visual aid, Horton polished his argument, knowing that legal precedent favored the city. When the U.S. Supreme Court had issued its authoritative decision on eminent domain in 1954, it had affirmed the government's right to take private property for public purposes. The only time it had revisited the issue since then was in 1984, when the Court actually expanded the public-use doctrine to allow Hawaii to condemn and redistribute ma.s.sive amounts of real estate that had been held by wealthy families prior to Hawaii's joining the Union. O'Connor had written the majority opinion.

Satisfied, Horton tested his case on a group of experienced judges and lawyers who played the role of Supreme Court justices in a mock hearing known as a moot court. The first moot court took place at the University of Connecticut's law school. At one point, as Horton argued that a city's desire to create economic development should justify taking private land under the public-use doctrine, a judge interrupted and asked a hypothetical question: under Horton's theory was it permissible for a city to take property from a small motel and award it to a big hotel capable of generating much more in tax revenue for the city?

It was just the kind of hypothetical question a Supreme Court justice might ask. Horton instinctively answered no, insisting that was probably taking the eminent domain doctrine too far.

In a subsequent moot court before judges and attorneys at Georgetown's law school, Horton got asked the same question. Again Horton answered no. Only this time the judges pressed Horton with follow-up questions. What about if private land was taken from Party A and given to Party B, who promised to build three more hotels on the land, or six, or even a dozen hotels? Certainly that would generate much more tax revenue. Wasn't that a valid public use?

The point was clear. If a city was justified in taking private land to put it to a use that would generate more tax revenue, where did you draw the line between what was permissible and what wasn't?

The more Horton tried to articulate where the line should be drawn, the deeper he dug himself into a hole. Before he knew it, he had spent fifteen minutes trying to answer that one question. He had only thirty minutes for his entire oral argument.

The mock arguments exposed the Achilles' heel of the city's position. Once you expanded the public-use doctrine from taking private land for schools, hospitals, and roads to include economic development, there was no way to draw a boundary on how far a city could go to take people's homes or businesses in the name of economic development. It was a point the inst.i.tute kept stressing in its arguments. Horton and Londregan knew they had to figure out what to say.

Horton's solution was a practical one-simply change the answer to yes. They should acknowledge right off the bat that it was okay for the city to take land belonging to a small motel and award it to a developer building a big hotel because it would help the city generate more taxes and more jobs.

Londregan bristled, insisting the city wasn't doing anything like taking land from a small motel and giving it to a big hotel. If the Supreme Court asked that question, he wanted Horton to simply say that the question didn't really apply in this instance.

”But I can't tell a justice: 'Your Honor, the question is irrelevant,'” Horton argued. ”You have to say either yes or no. And no matter which one you answer, you're going to have a problem. It's sort of like asking 'Are you still beating your wife?'”

Londregan refused to concede the point. ”You tell the Supreme Court you don't have to answer that question because we do not have a pure taking from A and giving it to B,” Londregan maintained. ”We don't have that situation. We have substantial public benefits and public uses.”

Horton decided Londregan's answer would end up bogging down the rest of his argument, and he couldn't afford to spend fifteen minutes trying to explain what Londregan was saying. If asked, he planned to simply say yes.

Londregan didn't like it, insisting that answer played right into the Inst.i.tute for Justice's hands. Horton would be supporting what Bullock had been telling the media and the courts for two years.

”My job is to get five votes,” Horton snapped, ”not to win the publicity campaign.”

Divided over what Horton should say, both men hoped the Supreme Court simply wouldn't ask the question.

Susette had never even been to New York City, never mind to the nation's capital. When Bullock told her she could bring one person with her to observe the oral arguments, she decided to bring LeBlanc. Although his diminished mental faculties wouldn't enable him to understand or appreciate the magnitude of the moment, she felt he deserved to be there. He'd stuck by her through the entire legal struggle. She couldn't see leaving him behind for the best part, even if it meant she'd have to divide her attention between celebrating the moment and looking after him.

The flight to Was.h.i.+ngton was rowdy. The plaintiffs ended up on the same plane as Londregan and all the City Hall employees and NLDC staff going down to observe the argument. Then both sides ended up at the same restaurant that evening. While people ate, drank, and carried on, Susette couldn't help questioning if what she was experiencing was really happening. In one corner of the restaurant she could see the NLDC and the City Hall folks. All around her sat her neighbors, an unlikely a.s.sembly of blue-collar people who had banded together to try to save their homes. She couldn't believe they were all just hours away from squaring off in the U.S. Supreme Court.

February 22, 2005 In the morning Susette flipped on the television in her hotel room. Rallies and protests against eminent-domain abuse were taking place in Philadelphia, St. Louis, Kansas City, Dallas, Minneapolis, San Diego, and a half dozen other cities across the country, all inspired by her case. She put on the pink blazer she had brought to wear especially for the oral argument. It matched perfectly the shade of paint on her house.

Holding LeBlanc's hand, she approached the Supreme Court building, noting the words ”EQUAL JUSTICE UNDER LAW” above the entrance. The ma.s.sive marble columns and ornate surroundings overwhelmed her. The place seemed more like a cathedral than a courthouse. ”Boy, this place is pretty impressive,” she whispered.

LeBlanc didn't reply.

The hallway leading to the spectator gallery was packed. Susette figured it must have been similar on the day Roe v. Wade Roe v. Wade was argued. She took her seat toward the front, spotting Bullock, Berliner, and Mellor standing at the counsel table. Bullock made eye contact with her and smiled. was argued. She took her seat toward the front, spotting Bullock, Berliner, and Mellor standing at the counsel table. Bullock made eye contact with her and smiled.

He and Mellor and Berliner had one thing on their mind: convincing the justices that by allowing private homes to be taken for economic development in New London the Supreme Court would be putting private homes and small businesses at risk everywhere in the country. If Bullock could get them to see the long-range ramifications of affirming the Connecticut ruling, five of the justices would have to put a stop to it.

All the small talk ended abruptly when the justices entered the chamber. Two were absent. Chief Justice William Rehnquist was home battling cancer and Justice John Paul Stevens had gotten stranded at an airport. By seniority, Justice Sandra Day O'Connor presided.

”We will now hear argument in the case of Kelo v. City of New London Kelo v. City of New London,” O'Connor said. ”Mr. Bullock.”

Bullock rose. ”Justice O'Connor, and may it please the Court. This case is about whether there are any limits on governments' eminent-domain power under the public-use requirement of the Fifth Amendment. Every home, church, or corner store would produce more tax revenue and jobs if it were a Costco, a shopping mall, or a private office building. But if that's the justification for the use of eminent domain, then any city can take property anywhere within its borders for any private use that might make more money than what is there now.”

Justice Ginsburg interrupted him. ”Mr. Bullock, you are leaving out that New London was in a depressed economic condition,” she said. ”The critical fact on the city side, at least, is that this was a depressed community and they wanted to build it up, get more jobs.”

”Every city has problems,” Bullock said, pointing out that the Connecticut law applied to every city, not just depressed ones. ”Every city would like to have more tax revenue.”

”But you concede,” Ginsburg said, ”that on the facts, more than tax revenue was at stake.”

”It is a desire to try to improve the economy through tax revenue and jobs. That is certainly the case,” Bullock said. ”But that cannot be a justification for the use of eminent domain.”

Justice O'Connor asked Bullock what standard he proposed to draw a line between when cities could take private land and when they couldn't. Bullock said munic.i.p.alities should not be able to take land for private uses.

Justice Breyer pointed out that every taking has some public benefit, whether it's increasing jobs or increasing taxes. ”That's a fact of the world,” Breyer said. ”And so given that fact of the world, ... why shouldn't the law say, okay, virtually every taking is all right, as long as there is some public benefit?”

”Your Honor,” Bullock said, ”we think that cuts way too broadly.”

”Because?”

”Because then every property, every home, every business can then be taken for any private use,” Bullock said.

”No,” Breyer countered, ”it could only be taken if there is a public use, and there almost always is. Now, do you agree with that, or do you not agree with my last empirical statement?”

For most of the remainder of his time, Bullock encountered question after question from the justices, demanding that he tell them where they should draw the line in eminent-domain takings. Even Justice Scalia seemed skeptical of one of Bullock's arguments. ”Do you want us to sit here and evaluate the prospects of each condemnation one by one?” he asked.

It all sounded pretty brutal to Susette, like being on a firing line facing seven shooters. Bullock could barely finish answering one justice before another came in with another question. The hypotheticals had Susette's head spinning. What did any of it have to do with her house?

As Wes Horton looked on, he was convinced that his inclination to avoid this same barrage by saying yes to a hypothetical question about hotels was the right move, even if it meant going directly against Londregan's wishes.

Bullock had just three minutes left before a red light would signal his time was up. Convinced he would need to respond to some of Horton's arguments, he asked to reserve his remaining three minutes until after the conclusion of Horton's time.

”Very well,” O'Connor said. ”Mr. Horton.”

Horton took the floor. ”There is no principled basis for a Court to make what is really a value judgment about whether a long-term plan to revive an economically depressed city is a public use of higher or lower rank const.i.tutionally,” Horton said.