According to the Washington Post, 62% of Americans think Sonia Sotomayor should be confirmed for the U.S Supreme Court because she is “about right” ideologically. The question is, how good will she be for municipal attorneys?
But after having taught Kelo to law students several times over the past few years, I now realize that Kelo is much more complex. Kelo was a 5-4 decision, and Justice Anthony Kennedy wrote a separate concurrence. Because Justice Kennedy was the “swing vote”, his decision predicts future Court decisionmaking more accurately than the Court’s primary opinion, because a taking which fails to satisfy Kennedy might not be able to get five votes in the Supreme Court.