The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In an e-mail written while he was working in the George W. Bush administration, Donald Trump's Supreme Court nominee Neil Gorsuch denounced Kelo v. City of New London, a terrible Supreme Court property rights decision that Trump himself has often praised. Kelo ruled that the government has the power to take private property and transfer it to another private owner in order to promote "economic development." Although the Fifth Amendment indicates that government may only take property for a "public use," the Court ruled that virtually any potential public benefit qualifies as such, even if the government fails to prove that the supposed benefit will ever materialize.
I. Gorsuch's Opposition to Kelo.
Gorsuch's e-mail endorsed Justice Clarence Thomas' hard-hitting dissent in the case:
Thomas was livid about the decision.
"Today's decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning," Thomas fumed.
Gorsuch thought the dissent was so powerful that he sent an email to two friends who were former Thomas clerks.
"I am blown away by Thomas' dissent," Gorsuch said.
"Brilliant stuff that completely demolishes the majority," he wrote. "Reminds us of the plain textual meaning of the Constitution and then breathes life and vital purpose into it, explaining the weaknesses of misguided judicial glosses."
As I describe more fully in my book on the Kelo case, Thomas' dissenting opinion makes a strong originalist argument for a narrow interpretation of "public use," which limits the use of eminent domain to taking land for publicly owned projects and private entities that have a legal duty to serve the entire public, such as public utilities.
Conservative originalists like Gorsuch and Thomas are not the only critics of the Kelo decision. The ruling was also denounced by many liberal living constitutionalists, including Ralph Nader, the NAACP, Howard Dean, and even socialist Bernie Sanders. That's because economic development and "blight" condemnations tend to victimize the poor, racial minorities, and the politically weak for the benefit of politically connected developers and other powerful interest groups. It is no accident that Kelo generated a massive political backlash that cut across conventional partisan and ideological lines.
II. Gorsuch vs. Trump.
Not everyone opposes the Kelo decision, of course. Many judges and legal scholars endorse the decision because of a general suspicion of judicial review of "economic" policy decisions. Among the most prominent longtime defenders of Kelo is one Donald Trump, who has a history of eminent domain abuse during his career as a developer, says he agrees with the Kelo decision "100%", and believes that the use of eminent domain to transfer property to private interests is "wonderful." During the presidential campaign, Trump offered a series of increasingly absurd defenses of his position on the issue. Despite pressure from conservatives, Trump refused to indicate any willingness to appoint an anti-Kelo Supreme Court justice.
I wonder if Trump knew of Gorsuch's position on the issue before he chose to nominate him. I suspect the answer is "no." Gorsuch had no public record on the subject or any other significant constitutional property rights issues. His stance was only revealed in an e-mail from his tenure at the Justice Department (since turned over to the Senate, after he was nominated), which Trump presumably did not have access to until he became president on January 20, just eleven days before the nomination was announced. I doubt that Trump had time to study those thousands e-mails in detail that quickly, or even that his advisers did. Even if the latter found this information, they may not have chosen to share it with Trump, who is famously uninterested in the details of political and legal issues. Be that as it may, liberals should take note that this is an important constitutional issue where Gorsuch opposes Trump and agrees with Bernie Sanders, Ralph Nader, Howard Dean, and the NAACP.
III. Gorsuch's Potential Impact on Kelo and Public Use.
Gorsuch's nomination is a lucky break for property rights advocates and opponents of blight and economic development takings on both left and right. In the short run, it may not change the balance of power on the Court. Justice Antonin Scalia, the man Gorsuch would replace, was also a critic of Kelo, and repeatedly called on the Court to overrule it.
But, unlike Gorsuch, Scalia did not endorse Justice Thomas' dissenting opinion. He only joined Justice Sandra Day O'Connor's considerably weaker dissent. The latter did not make the strong originalist case that Thomas advanced. Unlike Thomas, O'Connor would have struck down "economic development" takings without also reversing the Court's 1954 decision in Berman v. Parker, which first endorsed an ultra broad definition of "public use" and upheld "blight" and "urban renewal"takings that transfer property to private parties.
Much more than Kelo, Berman is the real root of the Supreme Court's badly flawed public use jurisprudence. In addition to mangling the meaning of public use, it authorized takings that led to the forcible displacement of hundreds of thousands of minorities and poor people from their homes and businesses. Its legacy continues to wreak havoc on the poor and politically weak even today. Even in the aftermath of Kelo, many states continue to take a permissive approach to blight takings, which continue to victimize the poor and minorities, albeit on a smaller scale than the heyday of urban renewal takings fifty years ago, when James Baldwin dubbed the policy "Negro removal" because of its tendency to displace African-Americans.
Justice Scalia had a pretty good, even if still imperfect, record on constitutional property rights. Gorsuch could turn out to be better.
If the 2005 e-mail is at all reflective of Gorsuch's current attitudes, his appointment should strengthen efforts to limit and eventually overrule Kelo, and perhaps also Berman. Such efforts are not likely to succeed quickly, since there is unlikely to be an anti-Kelo majority on the Court merely because one opponent of Kelo is replaced with another. But Gorsuch is only 49 years old, and could be on the Court for many years. During that time, he will probably have many opportunities to cut back on Kelo or even get rid of it. On both right and left, younger jurists are often more open to enforcing a narrow definition of public use than the older generation. Future appointees could potentially join with Gorsuch on these issues, even if the majority of the current justices might not.
As with his opposition to Chevron deference, Gorsuch's critique of Kelo is a good reason to support him from the standpoint of both originalism and leading versions of living constitutionalism. Both are also good reasons to back him if you want to curb the kinds of abuses of government power that Donald Trump particularly loves.
Not everything revealed in Gorsuch's Justice Department files is reassuring. Like Jameel Jaffer, I worry about what some of his record may portend for his attitudes on wartime executive overreach. Gorsuch certainly is not an ideal nominee in every way. But his newly revealed opposition to Kelo is a notable point in his favor.