“Would you have any litmus tests for a Supreme Court justice on cases like Kelo, for example, cases that really matter to libertarians, libertarian principles?” Benson asked.
“Yeah I think Kelo is one that really does stand out,” Johnson responded. “Although we don’t have litmus tests, but Kelo really stands out as a litmus test, in my opinion.”
In the same interview, Johnson also repudiated his vice-presidential nominee’s earlier remarks suggesting that the two might appoint justices like Stephen Breyer (who was in the majority in Kelo).
It is unfortunate that Johnson’s statement isn’t entirely clear (he cannot literally both abjure litmus tests, and simultaneously use Kelo “as a litmus test”). But I suspect he means to say that potential nominees positions on Kelo and related issues will be an important criterion for evaluating them, even if it won’t necessarily be completely dispositive by itself.
Kelo is the notorious 2005 decision in which a narrow 5-4 Supreme Court majority ruled that it is permissible for the government to take homes and other property from private individuals, and give it to other private parties in order to promote “economic development.” Although the Fifth Amendment states that the government may only take property for a “public use,” the Court ruled that virtually any potential benefit to public qualifies as such, and that the government does not even have to prove that the supposed benefits will ever actually materialize. In the Kelo case, it didn’t. The site once occupied by fifteen residential properties is today used only by a colony of feral cats.
No potential nominee should be judged solely on the basis of a single case. But Johnson is right to emphasize Kelo as an important yardstick – and not just because I happen to have written a book arguing that the Supreme Court made a major mistake in that ruling.
Photo by Gage Skidmore