The Volokh Conspiracy
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In his recently published memoir, The Making of a Justice: My First Ninety Four Years, retired Supreme Court Justice John Paul Stevens includes an extensive discussion of his majority opinion in Kelo v. City of New London (2005). The Takings Clause of the Fifth Amendment indicates that the government may only take private property for a "public use." In Kelo, a narrow 5-4 Supreme Court majority ruled that almost any potential public benefit qualifies as "public use," thereby permitting the City of New London to take fifteen residential properties for purposes of transfer to a new private owner in order to increase "economic development."
Stevens calls Kelo "the most unpopular opinion that I wrote during my more than thirty-four years on the Supreme Court. Indeed, I think it is the most unpopular opinion that any member of the Court wrote during that period." Kelo was indeed highly unpopular. Polls showed that over 80 percent of the public opposed the decision, an outcry that cut across conventional ideological and partisan divisions. Some 45 states enacted eminent domain reform laws in response. The unpopularity of the ruling does not, however, prove that it was wrong. What does make it wrong are the serious errors in Justice Stevens' majority opinion.
In his memoir, Stevens fortrightly acknowledges one of them: serious misinterpretation of relevant precedent. Stevens' majority opinion in Kelo relies heavily on the claim that its very broad definition of "public use" is backed by "more than a century" of precedent. That assertion is false. The nineteenth and early-twentieth-century cases cited by Justice Stevens as support for extreme judicial deference under the Public Use Clause in fact addressed public use challenges under the "Lochner-era" doctrine of "substantive" due process applying the Due Process Clause of the Fourteenth Amendment. During that period, the Supreme Court had not yet recognized that the Fifth Amendment applied against state governments. Thus, the only way for property owners to challenge a state or local government taking in federal court was under the Due Process Clause.
Stevens now acknowledges that these were not Public Use Clause cases, and describes his reliance on them as a "somewhat embarrassing to acknowledge"error. He generously cites me as a"scholarly commentator" who "caught this issue shortly after we decided Kelo," in an article I published in 2007. These concessions expand on similar admissions Stevens that made in a 2011 speech on Kelo, which I discussed in my book about the case (which Stevens, in turn, cites in his memoir).
Stevens deserves great credit for publicly acknowledging a significant mistake in one of his best-known opinions. Few judges are so openly honest and self-critical about their errors. It is also very impressive that Stevens is still writing books and otherwise contributing to public debate at the age of 99. We should all have such vigor and work ethic!
As I noted in my book, this one mistake does not by itself prove that Kelo was wrongly decided. The decision was still backed by more recent precedent, most notably the Court's 1954 decision in Berman v. Parker, which also held that a public use can be almost anything the government says it is, thereby upholding an urban renewal project that used eminent domain to forcibly displace thousands of poor African-Americans. But a poorly reasoned ruling decided during the mid-twentieth century nadir of judicial respect for constitutional property rights doesn't carry the same weight as "more than a century" of precedent endorsed by justices representing different time periods and judicial philosophies. The ultra-broad definition of "public use" endorsed by the Court in Kelo and Berman is also at odds with both the original meaning of the term, and leading variants of "living constitutionalism."
Despite this notable concession, Stevens continues to believe that Kelo was rightly decided. But his new rationale for the decision is completely different from the one offered in his majority opinion for the Court. He now argues that the Takings Clause of the Fifth Amendment does not constrain the purposes for which the government can condemn property, at all.
This rationale (previously advanced by a few legal scholars) is actually much more dubious than the broad definition of "public use" Stevens advocated in the Kelo decision. Among other things, it really is at odds with not just one century of judicial precedent, but two. While there is longstanding disagreement between advocates of broad and narrow definitions of public use, two centuries of state and federal judicial precedent hold that "public use" imposes at least some constraint on the reasons for which government may condemn private property.
In my view, textual and historical evidence provides stronger support for the narrow view, under which a public use exists only if the condemned property is transferred to government ownership (as in the case of public infrastructure such as roads and bridges) or to a private owner that is legally required to serve the entire public, such as a public utility or common carrier. But even advocates of the narrow definition hold that the the Fifth Amendment constrains the range of permissible takings at least to some small degree.
They recognize that it bars condemnations where there is no chance of any public benefit, and perhaps also those where the official public purpose is just a "pretext" for a scheme to benefit a politically influential private party. Stevens himself endorsed the latter constraint in his Kelo majority opinion, as did Justice Anthony Kennedy in his influential concurring opinion. Lower courts have since struggled to figure out exactly what counts as a pretextual taking under their reasoning. I offer additional criticisms of Stevens' radical new justification for Kelo in chapter 2 of my book about the case.
Stevens does indicate that there might be some constraints on eminent domain imposed by the Due Process Clause of the Fourteenth Amendment. But if so, they are very minimal, since in his view they do not preclude even the egregious taking in Kelo itself, which was heavily influenced by interest-group lobbying and resulted in a badly botched "development" project. To this day, the site of the condemned property lies empty, used only by a colony of feral cats who have taken up residence there.
Stevens' reliance on the Due Process Clause as the only substantive constraint on the purposes for which government may use eminent domain is also in tension with his claim (also made in his memoir) that critics of the Kelo decision are analogous to defenders of the Court's much-despised ruling in Lochner v. New York (1905), which held that the Due Process Clause protects freedom of contract and forbids maximum hours laws for bakers. The standard critique of Lochner is that the Court was wrong to use the Due Process Clause to protect "substantive" rights (as opposed to purely procedural ones) and that this error is particularly inappropriate in the case of "economic" rights. Ironically, Stevens' new view is that the Due Process Clause does indeed provide protection for substantive "economic" property rights (albeit only weak protection). By contrast, we who oppose the Kelo decision argue that that role should be played by the public use component of the Takings Clause, which is both explicitly substantive and specifically intended to restrict the seizure of private property by the state.
I believe that Lochner does not deserve most of its terrible reputation, and that accusations of "Lochnerism" are routinely overused by both liberal and conservative justices. In this instance, however, Justice Stevens is "Lochnerizing" to a far greater extent than opponents of the Kelo decision. He would extend Lochner-like reasoning to a new area, from which the latter would prefer to exclude it.
In his memoir, Stevens also points out that the Court has never explicitly ruled that the Takings Clause of the Fifth Amendment is "incorporated" against state governments. He is absolutely right about that. At some point in the early to mid-twentieth century, the Court began to simply assume (wrongly) that the Clause had already been incorporated in the Lochner era, and thus should apply to state governments. Stevens' mistake in the Kelo opinion has its roots in that longstanding assumption, though (as Stevens now recognizes) the falsity of that assumption is easily established simply by reading the decisions in question (which explicitly indicate that the Fifth Amendment was not considered applicable to the states at the time).
It is not clear to me whether Stevens now thinks that the Takings Clause should not apply to state governments. If so, it would be a major anomaly in an era when nearly all the rest of the Bill of Rights has been ruled applicable against states and localities, usually with the support of both liberal and conservative justices. Ending incorporation of the Clause would also require overruling many Supreme Court rulings, which did apply it to the states, including Kelo itself.
Stevens' admission of error in a major part of his Kelo opinion does not by itself prove that the decision should be overruled. But it does strengthen the case for the Court to reexamine the ruling to determine whether it should indeed be reversed or at least pared back. As I explain here and more fully in the conclusion of my book, there are several possible ways to limit or overrule Kelo, depending on how far the justices want to go.
I also explain there why Kelo fits the Supreme Court's established standards for identifying constitutional precedents that should be reversed. Those standards include whether the decision was "well reasoned" and whether it has been subject to "substantial and continuing criticism." Few major Supreme Court rulings have been subject to as much "substantial and continuing criticism" as Kelo, and fewer still are based on reasoning that even the justice who authored the decision now in large part rejects.
Perhaps Stevens' admirably honest retrospective assessment of Kelo will hasten the day that the case is overruled. If so, it could turn out to be one of the last great public services of his distinguished career.