The Volokh Conspiracy

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Are there three, four, or five votes to overrule Kelo?

At least three Justices are prepared to "reconsider" Kelo.


On Friday, the Court denied cert in Eychaner v. Chicago. This petition presented two questions for review:

1. Is the possibility of future blight a permissible basis for a government to take property in an unblighted area and give it to a private party for private use?

2. Should the Court reconsider its decision in Kelo v. City of New London, 545 U.S. 469 (2005)?

Justice Kavanaugh would have granted the petition. Justice Thomas wrote a dissent from the denial of cert, which was joined by Justice Gorsuch. (Ilya wrote about it here).

What do we make of this cert denial? First, the petition did not ask to overrule Kelo. It only asked to "reconsider" Kelo. I agree with Ilya that "Reconsidering Kelo is not necessarily the same thing as overruling it." I think we could read Justice Thomas's dissent as supporting the overruling of Kelo. And Justice Gorsuch is on board. But Justice Kavanaugh did not join the dissental. At a minimum, Justice Kavanaugh would consider the first QP about blight, and the second QP about "reconsidering" Kelo, whatever that could mean.

Second, what about the other Justices? There does not seem to have been a sustained campaign to garner a fourth vote–even a "courtesy" fourth. The case was first distributed for the June 17 conference. It was relisted for June 24 and July 1. And was denied on July 2. Those two weeks were probably long enough for Thomas to write his dissent, and circulate it. There were no joiners, so they published the dissent with the "mop-up" list. Had the case lingered on the docket for weeks or months, there would be some indication of negotiations. But here, only three Justices were willing to grant.

Third, why did Justice Barrett not vote to grant? I have no idea what her views are on Kelo. I did a quick search of the law review articles she authored. Zero hits on Kelo. We know she has a preference for stare decisis, at least with respect to Smith. Perhaps she is unwilling to reconsider Kelo even if it is wrong as an original matter. Or maybe there are vehicle issues. (I suspect her cert denial in the TWA v. Hardison cases may have been due to vehicle issues.) Here, Justice Kavanaugh warrants praise, while the junior justice shows restraint yet again.

Fourth, where is Justice Alito? Ilya suggests that Alito may have spotted vehicle issues:

Justice Samuel Alito has long held similar views, going back at least as far as his interest in taking the case of Goldstein v. Pataki back in 2008. If Alito chose not to cast the fourth vote necessary to grant the petition for certiorari in Eychaner, it may be because he thought it was a flawed vehicle for the issue.

Hopefully other groups can tee up a clean challenge.

Fifth, what about the Chief? Well, he is hesitant to grant any petition that even calls any precedent into doubt. His preferred path is to quietly overrule precedents without saying so. Cedar Point Nursery was the strongest property rights decision I have ever read. Roberts basically rewrote Loretto. But he wouldn't dare say so. If there are four votes, though, Roberts cannot stop a grant. And at that point, he can rewrite Kelo.

Finally, if the Court is serious about overruling Kelo, it should also overrule Hawaii Housing Authority v. Midkiff and Berman v. Parker. The plaintiffs in Kelo did not ask to overrule Midkiff and Berman. And that position hamstrung them during oral arguments. So long as those precedents remain on the books, the state can still engage in rampant eminent domain abuse.