It looks to me as if Walter and I agree on Kelo—not without overturning several decades of precedent could the court have adopted a requirement that the government can only take property (paying just compensation) if it is actually going to turn the property over to the public (as with a school or park). And anyway, what if after some years the government concludes it no longer needs the property? Can it not sell, or must it give the property back to its original owner, who must then refund his just compensation?
Walter also agrees that the danger is cronyism and that something a bit more robust than Justice Stevens’ if-they-say-it’s-public-it’s-public standard of review is in order. After all, the court is being asked to enforce a constitutional right not to have your property taken except for a public use. That’s more than just asking the court to enforce good policy.
Incidentally, the government may almost always be able to get its hands on the property without using compulsion—by buying it like anyone else would. True, when the government takes by eminent domain, it pays “fair market value.” But when I decide to sell you my home, I don’t sell for what a court says is fair value, but for what I can get for it and what you will pay.