The Appellate Division’s ruling in the Red Hook Boat Club case is more than a win for the Town Board. It is a failure of judicial scrutiny.
Four judges unanimously upheld the taking, accepting the town’s claim that the property should become a public waterfront park. They gave the Board broad discretion to choose the site and concluded that the club had not proved the decision irrational. That approach leaves the people whose property is being taken with a steep burden—and the government with little reason to fear a searching review.
The warning signs were laid out years ago in Kelo v. City of New London. Justice Sandra Day O’Connor, joined by Chief Justice Rehnquist and Justices Antonin Scalia and Clarence Thomas, warned that excessive deference could drain the words “for public use” of their meaning. Justice Thomas, in a separate dissent, argued for a stronger constitutional protection of private property. Their concern was that courts would accept a government’s declaration of public benefit too readily, allowing officials to decide whose property should be taken and why.
The Red Hook case is not Kelo: the town says it will operate a public park, rather than transfer the land to a private developer. But the deeper warning still applies. A public-use label cannot substitute for judges independently examining whether this particular taking is justified. Here, the judges relied on the town’s stated purpose, its site-selection rationale and its environmental review, while insisting that a court should not second-guess the Board’s choices.
That is precisely when judges must be careful. Eminent domain is the power to compel an owner to give up property. The courts should demand convincing evidence that the taking is necessary, that alternatives were fairly considered and that the asserted public benefit is more than a convenient justification. Instead, this panel treated the Board’s discretion as the decisive fact.
The ruling may fit comfortably within existing precedent. But precedent is no excuse for judges to abandon their responsibility to enforce the constitutional limit. Scalia and Thomas understood the danger of a “public use” test that turns into “the government says it benefits the public.” The Red Hook judges had the opportunity to take that danger seriously. They chose deference.
That choice weakens the protection private property owners are supposed to have when government comes for their land. A park may be a public good. But a court that barely tests the government’s case risks making the promise of constitutional protection feel like a formality.
