by Jennifer Russell
Special Correspondent for The Virginia News Source
There are probably few experiences more awe-inspiring than to get to cover
oral arguments in what may be one of the most historic cases heard by the U.S.
Supreme Court since Brown v. The Board of Education.
As a correspondent for The Virginia News Source, I recently had the
opportunity to report on the case of Kelo v. City of New London, a history
making case on the constitutional limits of the power of eminent domain.
I helped file, at the time, a special report on the case for VNS with fellow
contributor, Norfolk lawyer Stephen Merrill, who had filed a friend of the court
brief and is General Counsel and Executive Secretary of the Unalienable Rights
Foundation. This is some of my
observations on the feel and the experience of attending a Supreme Court session
as a member of the press.
By the time of our arrival at the building at 8:00 a.m. a long line had
formed for members of the general public wishing to attend the hearing. I
thankfully learned there is a special entrance for members of the press. My VNS
badge and press credentials got me right where a reporter likes to be: An up
front seat while many others were turned away. We members of the media even have
our own lounge in the court, although it is a bit Spartan.
Although my associate Steve was at the court as an attorney with a brief in
the case, he was not allowed immediate entry. He was required to remain out of
the main court chamber until the actual arguments in Kelo v. City of New London
began. Then he got a seat of honor. When that case began, the court summoned
Steve. He was seated in the guest of honor seat of Chief Justice William H.
Rehnquist - quite a coup.
The main chamber for Court sessions is elegant while understated. When full
of people, the room seems small. Even from a number of rows away one feels
intimately close to the Justices. Yet, the high ceiling (20 ft. I estimate)
brings a feeling of enormity at the same time.
Most interesting to me, the only graven images found in the main chamber are
sculptures of symbolic figures on friezes on the east and west walls and
sculptures of ancient lawgivers on friezes on the north and south walls.
The symbolic figures represent, for example, The Majesty of Law, Wisdom and
Protection of the Innocent. The lawgivers run from Hammurabi, King of Babylon
(circa 1750 B.C.) to Napoleon (1769 – 1821). The sole American portrayed on
the friezes is Chief Justice John Marshall (1755-1835): the judge who made the
United States Supreme Court a coequal branch of the federal government: (even
though we are told judges are not supposed to be the actual lawgivers, however).
See also The
The main law library seems better suited to a palace or a cathedral than to a
court of law. Once again, with this décor, the logic of the law prevails over
the ethos of individual personalities: there are few human images to be seen.
As the Justices entered the chamber a crier announces their arrival. It was
all business after that. The intellectual intensity reverberated throughout the
oral argument. I am glad I was not the one having to answer questions.
To review the full text of the oral argument in Kelo v. City of New London
Justices questioned the lawyers on both sides of the argument, making them
think quickly on their feet to support the various scenarios the justices
envisioned in considering the impact of various actions they might take on the
case in making their decision.
Merrill was the only lawyer who filed a brief asking the court to overrule
Berman v. Parker (1954) whereby the court had expanded the original intent of
eminent domain - which allowed condemnation of private property by governments
strictly for the purpose of roads, utilities, school, and other publicly-owned
Since Berman, governments have been expanding their powers of eminent domain,
almost unchecked, to include seizures of private property to rezone into
commercial uses that would pay more taxes. More and more, however, citizens are
rebelling against such abuses and just this week a Norfolk judge ruled against
the City of Norfolk for wanting to take property away from one business and give
it to the Coke plant for parking. (See story: Court
rules against NRHA Merrill and the Tidewater Libertarian Party argued that
the expansion of such abuses of eminent domain by localities should be stopped.
Merrill ask the court to reverse its 1954 Berman decision. It was the only
brief of some 25 filed that addressed the root cause of today's problems with
eminent domain - Berman.
The Justices asked 3 sympathetic questions aimed at Merrill's brief. The
court may rule by June and miracles can happen - even in such an august venue as
the United States Supreme Court.