Kelo to Be Condemned? Looking at Direction of Roberts Court
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Justice Kennedy is retiring from the Supreme Court of the United States. It’s been written about and reported extensively on this site. Reviews of his time on the bench have been and will continue to be written. Speculation on his successor begins apace. But it is almost certain that, if Kennedy is replaced with a Trump nominee, the new median justice is going to be Chief Justice Roberts.

If you want to understand where the Court is going in the near future, that’s what you should be looking at. It is the median justice who plays the role of “swing voter,” and thus shapes the direction of the Court’s 5-4 decisions. As long as the new Justice is farther to the right than Chief Justice Roberts, it doesn’t matter if the new Justice is a duplicate of Justice Thomas or Justice Alito or somewhere in between. So, given that Roberts is now the Court’s fulcrum, the Court may be primed to overrule some old cases, or at the least give them new hearings. One of these cases is Kelo v. New London.

In Kelo, the city of New London planned a new urban development project in a part of the city near the waterfront. It was intended to “revitalize [the city’s] ailing economy.” To do so, New London attempted to take the property of the area’s then-current residents through eminent domain, a power possessed by all governments to compel a person to give up their property. But in this case, a few owners (including the eponymous Sussette Kelo) sued under the Fifth Amendment. The relevant part of that amendment reads “nor shall private property be taken for public use, without just compensation.” They contested that the city of New London had no right to take their homes because the city didn’t intend to put it to public use but instead to turn it over to private developers. The Court rejected that reasoning 5-4. Instead, they held that increasing the economic productivity of the city was a public use. In fact, they went further; they said that legislatures deserved near total judicial deference on what a public use was.

This decision dramatically expanded the power of (in practice) local governments over property. Though such concerns are rarely the stuff of headlines, it is one of the most disruptive powers a local government has and it can exercise it with essentially no judicial oversight. The dissenting Justices were disgusted, writing two opinions, one by Justice O’Connor and another by Justice Thomas. In them, they wrote (respectively) that “all private property is now vulnerable to being taken… so long as it might be upgraded” and “if such economic development takings are for a public use, any taking is, and the Court has erased the Public Use Clause from our Constitution.” (Internal quotation marks, here and elsewhere, are deleted.) And they threw moral weight behind their dissents as well, predicting the decision would permit the powerful to uproot and abuse the powerless.

In some ways, that’s been born out. Justice Thomas noted in his opinion that dispossession for such “public uses” as the profit of General Motors in Detroit already mostly affected the poor. Other abuses have surfaced as well. The government of San Diego, California seized the lands of several residents and businesses to build a stadium for the Padres for the obvious public use of allowing residents to get gouged for beer while the home team plays terrible baseball. The main consequence, of course, was that the owners of the Padres profited, as it is with all such stadium deals.

Now, because this case was decided in 2005, there’s some overlap between the Court now and then. Specifically, in addition to Justice Thomas, Justices Ginsburg and Breyer were also part of the decision. They sided with the majority. Then Justice O’Connor and current Chief Justice Roberts have very similar Judicial Common Space scores, a system to measure a judge’s liberal-conservative lean by how often they vote together. Justices with very close scores should almost always agree. When questioned about the subject during his confirmation hearings, Chief Justice Roberts (appropriately) did not provide a clear answer. But he did indicate that the issue might come before the Court again, and that he thought it was a good example of how Congress could protect rights on its own, without the Court. Add those together, and Roberts looks like a strong candidate to write an opinion overruling Kelo.

So let’s say that the Kelo decision comes down. What then? Well, using the dissents as our guide, there are two possible directions the Court could then go. If they take Justice O’Connor’s side, they would decide that the public use clause only allows governments to take property if they intend to put it to a use that is clearly separable from private economic improvement or resolve a clear harm to the public. Common Space scores suggest that’s what they would do if they overrule it. This change would restrict governments from seizing property for redevelopment plans. But perhaps more importantly it would have to put eminent domain decisions back under direct judicial oversight, allowing ordinary citizens to have a better chance of securing their property by lawsuits.

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