Levels of Judicial Review
Besides Justice Stevens' dissent, every opinion in Johnson was completely about the level of scrutiny. Justice O'Connor, joined by Justices Kennedy, Souter, Ginsburg, and Breyer posited that ALL forms of race discrimination are subject to strict scrutiny. Justice Ginsburg wrote separately to explain that she thinks that some forms of discrimination, as in Grutter, do not warrant strict scrutiny. Justice Thomas in his opinion, joined by Scalia, would not engage in such searching scrutiny in the context of prison management.
From Justice O'Connor:
The reasons for strict scrutiny are familiar. Racial classifications raise special fears that they are motivated by an invidious purpose. Thus, we have admonished time and again that, "[a]bsent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining . . . what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." Richmond v. J. A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion). We therefore apply strict scrutiny to all racial classifications to "'smoke out' illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool." Ibid.While I disagree with Justice O'Connor that all racial classifications necessarily contain this high risk of government employing illegitimate uses of race, I think that Justice Thomas goes too far in awarding such deference to the prison system. It seems that there are surely risks of discrimination in a context filled with such hate and racial division.
Justice Ginsburg, incidentally, makes the most sense. The reasons for Affirmative Action do not seem illegitimate. They may not be prudent, may in fact hurt minorities, but I don't think they are "illegitimate" in terms of the original meaning of the Equal Protection Clause.
What does this mean for Kelo? I think that the issue is largely the same. The claim is that although eminent domain is necessary for government operations, state governments at times use the power in illegimiate ways. The Court should police this, either by enumerating the purposes for a taking (as in Hathcock), or by reviewing the taking with less deference to state legislatures (as in Nollan and Dolan). Note that this is what the court did with punitive damages in Gore (enumarating acceptable purposes) and Cooper Industries (requiring heightened appellate review).
I guess, then, for me Kelo should be decided based on this risk of abuse. I need to read more to have an opinion on the idea, but would welcome fellow contributors, and commentors, to make the case.