Jeffrey Toobin Revises His Inaccurate Discussion of Kelo . . . But Not Nearly Enough:

Back in January, eminent domain scholar Gideon Kanner and I (in this post) pointed out several inaccuracies in prominent legal journalist Jeffrey Toobin's discussion of Kelo v. City of New London in his book The Nine. Among other things, we pointed out that Toobin was wrong to say that Kelo had attracted little attention until after the case came down, and wrong to attribute the enormous political backlash generated by Kelo to "the conservative movement." To the contrary, many of the strongest denunciations of Kelo came from liberals such as Ralph Nader, Bill Clinton, Howard Dean, and Maxine Waters. Numerous liberal organizations, including the NAACP, AARP, and Southern Christian Leadership Conference filed amicus briefs supporting the property owners in the case. In the general population, some 77% of self-described liberals stated in polls that they opposed the decision (data and quotes documented in this article).

Jeffrey Toobin apparently read my post, and to his credit e-mailed senior conspirator Eugene Volokh to indicate that he would make corrections in the paperback edition of his book. That paperback edition is now out, and Toobin did indeed make a minor correction, revising the text to note that "[e]ven some liberals, who regarded the decision as a symptom of authoritarian government, denounced [Justice] Stevens' [majority] opinion [in Kelo]."

This is an improvement over the previous edition of the book, where the liberal reaction against Kelo was entirely omitted. But for reasons noted by Gideon Kanner, Toobin's revised text is still highly misleading. I agree with most of Gideon's discussion, and would add two additional points:

First, Toobin's revised text misstates the reason why the liberal opponents of Kelo objected to the decision. It was not because they thought it was "a symptom of authoritarian government" but because it licenses government officials to engage in condemnations that tend to victimize the poor, minorities, and the politically weak for the benefit of influential developers and other powerful interest groups. The NAACP, AARP, and SCLC made these points in their amicus brief in the case. I linked that brief in the post that Toobin had read, so it was surely available to him.

Second, the phrase "even some liberals" gives the misleading impression that Kelo critics were a minority (perhaps a small one, given the extremely brief mention devoted to it, as compared to the much more extensive discussion of conservative critics) among liberals. In reality, the vast majority of liberal public opinion and liberal activist groups disapproved of the Court's decision. Then-Democratic National Committee Chair Howard Dean even went so far as to misleadingly denounce the decision as the handiwork of "a Republican-appointed Supreme Court" in order to disassociate liberal Democrats from it (quoted on pp. 7-8 of this article).

We all make mistakes and I am not accusing Toobin of deliberate deception here. Even so, it is unfortunate that a prominent work on the Supreme Court by one of the country's best-known legal journalists contains such significant errors about the most important Supreme Court property rights decision in many years. As Eugene Volokh pointed out in a series of posts, the first edition of the book also had a lot of other factual errors (I have not yet had a chance to check if these other errors were fixed in the paperback edition).