Contributor, The Volokh Conspiracy

Earlier posts in this series based on my new book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain have told the story of the Kelo case, criticized its reasoning and result, and analyzed the widespread reaction against it. This final post in the series considers possibilities for the future.

For the moment, Kelo remains on the books, and it is unlikely to be overruled in the next few years. But there is a substantial likelihood that it will eventually be overruled or limited. Past experience shows that closely divided and heavily criticized Supreme Court decisions are the ones most likely to be reversed. Kelo was a 5-4 nail-biter, and has generated more widespread opposition than almost any other modern Supreme Court decision. In addition, the case fits the Court’s own criteria for overruling precedent very well (though the Court is far from uniformly consistent in following its precedents about precedent). One of them is whether the ruling has been subjected to “substantial and continuing criticism,” which undeniably describes Kelo. Justice John Paul Stevens’ admission that his majority opinion in Kelo was partly based on an “embarrassing to acknowledge” misreading of precedent might also weaken the decision’s standing.

Even if Kelo does not get overruled, the Court could potentially limit its reach. The most likely pathway for doing so is by expanding on an element of the Kelo decision itself. Although the Court ruled that the government can condemn property for virtually any “public purpose,” it also noted that “pretextual” takings – condemnations where the official rationale is a pretext “for the purpose of conferring a private benefit on a particular private party” are still unconstitutional. Unfortunately, the Supreme Court did not give lower courts much guidance on what counts as a pretextual taking, and how to differentiate pretextual condemnations from legitimate ones. In the years since Kelo, at least five different approaches to pretextual takings doctrine have emerged in state and lower federal courts. I cover all five in detail in Chapter 7 of my book. This entire area of takings doctrines is clearly a mess, one that is unlikely to be resolved unless and until the Supreme Court issues a new decision clarifying matters. If that decision adopts a relatively robust and nondeferential approach to pretextual takings, it could limit the reach of Kelo. Moreover, a decision considering the issue of pretextual takings could potentially simultaneously reconsider Kelo itself.

If Kelo does eventually get overruled, it will be a significant victory for constitutional property rights. But it would not be the end of the struggle over public use. Even if Kelo is overruled and “economic development” takings are banned, blight condemnations of the kind upheld in the Supreme Court’s 1954 ruling in Berman v. Parker would still continue unless and until Berman is also overruled. Blight condemnations have harmed far more people than pure “economic development” takings have, forcibly displacing hundreds of thousands of people – most of them poor, racial minorities, and lacking in political influence. Most of the constitutional arguments against Keloboth originalist and living constitutionalist – apply to Berman, as well. Berman, not Kelo, was the first Supreme Court decision to endorse the view that a “public use” can be virtually anything the legislature says it is.

There are ways to overrule Kelo without overruling Berman at the same time. Justice Sandra Day O’Connor outlined one such strategy in her Kelo dissent, and I discuss other possibilities in the book. In the short to medium term, some such approach is the most likely way to achieve the reversal of Kelo. Eight of the nine justices who considered the Kelo case seemed to agree that Berman should not be overruled, though the three who joined O’Connor’s dissent, but not Thomas’ did take the position that Berman’s more extreme reasoning should be pared back. We are unlikely to see an anti-Berman consensus emerge in the judiciary any time soon. But, in the long run, there is every reason to aim for its reversal, as well as that of Kelo. The two decisions have many of the same flaws in legal reasoning. And Berman is the one that causes greater real-world harm.

The considerable progress already achieved by the political and judicial reaction against Kelo gives property rights advocates legitimate reason for optimism. But it would be a mistake for them to be overconfident. Kelo (to say nothing of Berman), still commands widespread support among legal scholars, left-of-center judges, state and local government officials, and some politically influential business interests. Overcoming this opposition will not be an easy task.

Kelo and the negative reaction it generated are far from the end of the debate over public use and constitutional property rights. That debate continues, and it may be a long time before a new consensus on public use emerges.

I cannot predict what will happen with any certainty. But having written a book about Kelo and its flaws, I hope someday to get the chance to write another book about the case that overrules it.

For convenience, here are links to earlier posts in this series:

1. Why I wrote the book.

2. “The Story Behind Kelo v. City of New London – How an Obscure Takings Case got to the Supreme Court and Shocked the Nation.”

3. “The Case Against the Kelo Decision – Part I.”

4. “The Case Against the Kelo Decision – Part II: Originalism and Living Constitutionalism.”

5. “The Political and Judicial Reaction to Kelo.”