George,

The Washington Post on 7/24/05 had an op-ed piece entitled "What Makes Roberts Different" by Douglas T. Kendall, a UVA graduate, an adjunct professor in the UVA program in Urban and Environmental Planning , and head of the Community Rights Counsel, a public-interest law firm in Washington D.C. In that piece Mr. Kendall observed, "In 2002 the property rights movement was at its zenith; developers had won a string of Supreme Court victories that undercut environmental and land-use laws across the country.

"That year, the court agreed to hear a challenge to a carefully crafted consensus plan to save Lake Tahoe from the damaging effects of overdevelopment."

He goes on to say that Lake Tahoe retained Mr. Roberts as legal counsel who "wrote the best legal brief I've ever read in a takings case." The result according to Mr. Kendall, was a victory "that stopped the ... movement in its tracks."

I agree with Mr. Kendall's judgment on the effect of the Lake Tahoe decision. I also agree with him that "Roberts is not the Supreme Court justice I would choose" in spite of his effectiveness in this case.

I bring this up because some weeks ago, and before Justice O'Connor resigned, I contributed a note on the Loper site in reaction to the Kelo v New London, Connecticut, Supreme Court decision. I suggested that the most interesting thing about the Kelo decision was not the ruling itself, but the well-orchestrated and staged "spin" put on it by right-wing property rights groups.

I argued that citizens should see the Supreme Court majority opinion as good constitutional law and good public policy. The Court in Kelo essentially said that it was not its role to draw a "bright line" for states and localities on matters affecting property. If the broad public disapproved of Connecticut law and/or the particular application of the law in that case, they could use the democratic planning and decision process at the state and local level to draw the property policy as they thought appropriate. It may seem like an abstruse point, but if the decision in Kelo had gone the other way, the Lake Tahoe decision would have been undermined , and re-opened the environmental regulatory authority of states and localities to protect the environment.

We must all give credit (grudgingly in my case) to the ideologies of the right wing think tanks, their ability to corral huge amounts of money, their commitment to a strategy and plans that look at decades of persistent advocacy by lobbyists, campaign machinery, and litigation before the courts. They have been successful in creating "stories" about crime, social services, health care, estate taxes and property rights that are are personified by Willie Horton, welfare queens, and the non-existent farmer who has to sell his farm to pay the "death tax." Let's not let Ms. Kelo become the representative "story" that shapes the balance in property policy.

Rich Collins (electronic mail, August 5, 2005)