John Roberts, Kelo, and Roe v. Wade.

The only issue that ever seems to matter in Supreme Court judicial confirmation battles is the fate of Roe v. Wade. Now that President Bush has two Supreme Court vacancies to fill and that he has chosen John Roberts to be his nominee for Chief Justice the issue is likely to be front and center. Roberts is known to have co-written a brief that said the case was wrongly decided and should be overturned. Liberals are scared to death that Bush will appoint enough justices to the Court that a majority will emerge to overturn Roe.

What would happen if that occurred? The Kelo eminent domain case tells us what is likely to happen.

Kelo, of course, is the recent Supreme Court case that upheld the use of eminent domain against people's homes, not for public use, but for the public purpose of redeveloping the property by another private investor in order to increase the local government's tax base. The decision has sparked a nationwide political backlash by citizens and legislators to protect home ownership against eminent domain.

For instance, here in California, San Diego Democratic State Senator Christine Kehoe has recently introduced legislation to put a two-year moratorium on the power of government to use eminent domain against homes and Northridge Republican State Senator Tom McClintock has introduced an even more stringent constitutional amendment. (See San Diego Union-Tribune story here.)

The two legislators differ in their view of eminent domain. Kehoe is against a blanket ban on government authority to take private property from one owner and give it to another for redevelopment because its use can improve the community.

She proudly points to a reborn City Heights. "Instead of burned out buildings, we have a thriving community," she said. "It's a neighborhood transformed."

McClintock, on the other hand, opposes any use of eminent domain that takes property from one private owner and gives it to another.

"This has to do with taking from one citizen, usually someone who is politically weak, and giving it to someone else, who is politically well-connected," he said.

In California, eminent domain can't be used to take private property from one owner and give it to another unless the property is in an economically blighted area. The issue developing in California now is how much protection to give to private property owners against the government's power of eminent domain. Some are lining up to give property owners maximum protection so that there property can only be taken to build roads and schools or other traditional government functions. Others are lining up to protect the government's power to use eminent domain for redevelopment while restricting the conditions that permit the government to seize property. This latter position involves making it harder to prove blight.

What's instructive about this issue for Roe v. Wade is how the issue of private property protection and eminent domain has been thrown into the legislative arena by the Supreme Court's decision. The decision also revealed how different states protect private property to different degrees. For instance, Connecticut's eminent domain power, where the Kelo decision arose, is more sweeping than California's. But the upshot of the decision across the country has been a political move to protect private property rights.

Imagine one day Roe v. Wade is overturned by a Bush packed John Roberts Supreme Court. In California, the decision would have little effect as the state's constitutional right to privacy protects the right to abortion. The decision would have a different effect in other states depending on the laws of those states. But if Kelo and its aftermath is any guide the day after Roe is overturned, a national movement would begin to protect the right to abortion with legislation being introduced in the states to protect the right to one degree or another. The voters and their representatives would finally have a say about the scope of abortion laws in the United States.

-tdr