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.

NEXT: Justice Gorsuch Sketches The Post-Fulton Roadmap in Amish Septic System GVR

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  1. Kelo applies to chattel. Only the word, property, is used, not real property. The states should presume organ donation. That presumption increases the supply 10 fold.

    Judge Kazinski argued persuasively, highways ownedby the public serve private, profit making truckinh firms. Private owners spend their own money to build.

    1. The feminist enemy took out the smartest judge inthe country, mentor to Eugene Volokh. Sick of those lawyers and agents of the Chinese Commie Party. When China attacks Taiwan, all its American collaborators are arrested, tried, and imprisoned for treason. To deter.

    2. I don’t know who Judge Kazinski is, but he doesn’t sound very smart; highways owned by the public serve the public. Trucking firms do not have any exclusive right of use or access.

      1. Eugene was so bored and disappointed with his Supreme Court clerkship. It was barely adequate preparation to clerk for Judge Alex Kozinski.

        Besides trucking firms, people going to work at non-profits for a salary can use the public highway. On the other hand, anyone with a purchase price or rental can have a unit in the privately owned condo too. Ending blight and tax revenues are a public benefit.

        I consider any form of government control to be measurable Commie. One does not need a deed to control a property. Regulation is as effective as ownership. By that measure, the US is 90% Commie already. We have to claw back to 50% by deterring the Democrat Party.

        1. You . . . don’t know the purpose of a deed or why they’re administered by government.

      2. If you don’t know you better axe somebody. (However no relation to my name which is after Ted Kaczynski, which is too hard for me to reliably spell).

  2. Can someone please tell us why so-called conservatives hate Kelo and its attack on private property rights, yet support the recent case that allows government to delegate its eminent domain rights to a private company to build a privagtel owned pipeline?

    Oh right, these faux conservatives support pipelines and the energy companies, so taking private land by private companies is acceptable. Yeah, that must be it.

    1. The pipelines are taking land from states, not private property (at least, the case was about states) … and the dissent was written by 3 conservatives mainly, so …

    2. Ouuuuu …. a scary ‘so-called!’ And a ‘hate!’

      We conservatives – as we call ourselves proudly – are not universally against eminent domain. How do you think the railroads were built? And highways? The question is, who benefits? If the entire public benefits directly, and the thing can’t be done without securing some property against the wishes of some owners, then eminent domain taking – with proper payment – is the least of evils.

      A gas pipeline is a public good. Millions of people use natural gas to cook and to heat their houses. Businesses use natural gas, benefiting both their customers and their employees. And unlike government actions, private capital pays for it.

      In the case of Kelo, the public good claimed was indirect – with new businesses, the tax base would be increased. You know what else would in increase local tax bases? Clearing out slums, to be replaced by new, gentrified housing. That is, clearing out black and brown people for higher income ‘so-called’ progressive white yuppies. How’s that sound for you? Whaddya think, Skippy?

      1. ” We conservatives – as we call ourselves proudly – are not universally against eminent domain. ”

        Everyone knows the only things uniformly embraced by conservatives these days are bigotry and superstition.

      2. If a pipeline is such a ‘public good’ then why not have government build and operate it. Istead we have a public taking for private, for profit enterprise. Look I support eminent domain for such things as highways, rights of way, government construction which benefits the public and must be done by the government because of externalities, but what the modern conservatives do is support a principle when it is aligned with their politics, and abandon principles when they conflict with their politics.

        Eminent domain for private companies is just wrong, period, end of sentence. There is no Contitutional right for a private company whether directly or indirectly to take private property for private business use. It really is that easy, and that’s what those of us who oppose Kelo believe.

        1. Government does nothing well. That is the reason for privatization. See the garbage infrastructure bill. Toxic payoff to unions. Expect lane closures for the next 10 years, with 6 guys in hardhats holding clipboards watching 1 guy operate a backhoe ever so slowly to milk the costs. If they g were government workers, it would take 20 years, cost twice as much, and it would be 12 guys watching 1 guy do any work.

        2. A gas pipeline is a traditional public use similar to a road or railroad. In the 19th Century, states and the Federal government used eminient domaim to acquire land for canals and railroads which were operated by private companies. This isn’t all that different.

          What made the case controversial was the use of wminent domain against astate. If a privatw landowner owned the land, the public use aspect wouldn’t have been controversial even for opponents of Kelo.

    3. You do realize PennEast was 5-4 with three of the “conservatives” – Barrett, Thomas, and Gorsuch in dissent, right?

      And I think you’ll find a lot of conservatives are disappointed with the outcome of PennEast.

      1. And yet had the other conservatives sided with the conservative position the case would have gone the other way. You don’t get credit for failing but being close.

        1. I think Professor Blackman is right that this is basically a 3-3-3 court. Roberts, Kavanugh, and Barrett are to the right of former Justice Kennedy and are hardly liberals. But they are not going to vote predivtably conservatively on every issue.

    4. This is an ugly can of worms to open.

      Republicans are simple to understand for the bulk of their legislation: stop government from making business harder. Regulation, taxes, these things increase the risk of failure of invesements by adding impediments, or reducing the potential likelihood of payback (smaller profits from increased taxes makes for greater risk.)

      Democrats are more subtle. Their order of priority seems to be:

      1. Increasing revenue for voracious government, spendig to get elected.
      2. Lawyer enabling behaviors
      3. Minorities and poor and other sob story cases.

      I ws very puzzled why the Dems prioritized taking poor people’s land and houses to give to big business, but this ordinal ranking of priorities explains it fully. And it offers, more importantly, predicitive power, which is the only real way to test a theory, as explanatory power is cool, especially if parsimonious, but suffers from potentially being a “just so story”.

      1. You’ll note people against Kelo have had limited success calling out Democrats for being on the side of government and business instead of the poor or working-class person, shaming them. But that tends to be just the True Believers that affects, not the real movers and shakers who devised the order of priorities.

      2. When you say, get elected, the meaning is, personal net worth goes from $40 million to $80 million.

    5. Can someone please tell us why so-called conservatives … support the recent case that allows government to delegate its eminent domain rights to a private company to build a privagtel owned pipeline?

      Who on earth are you talking about here?

    6. The Keystone pipeline also involved foreign oil and Republicans make a big deal about being “energy independent”. Also Republicans initially celebrated Trump appointing Tillerson as SoS even though he wanted America to import LNG and as CEO he was busy looking for oil anywhere but in America.

  3. If SCOTUS overturns Kelo, I’m wondering how the Liberal media will spin it as an attack on Democracy.

  4. Finally, if the Court is serious about overruling Kelo, it should also overrule Hawaii Housing Authority v. Midkiff

    It absolutely should not. Kelo was wrongly decided, but Midkiff was not. If you have a completely skewed initial property distribution, the Takings Clause becomes a device to perpetuate aristocracy.

    1. It’s going to be difficult to impossible to rule overrule Kelo without overruling Midkiff. Both involve seizing property from one private entity to give to another. Just because Midkiff owned a significant amount of land does not change that it was given it to a private party.

      Side note, the intended purpose of Midkiff was to lower prices. This failed just as miserably as Kelo.

  5. I would like the people here to move to the more difficult policy of utility. Commie vs small gov, caring for the parasites vs cutting them off. Emotional and satisfying. Easy but ineffective. That is the stupid lawyer way, emotions.
    What is harder but necessaryrequires work. Figure out the best doses of each in small jurisdictions before making policies. That massive work is for the legislature, not for its runnng dog,the court.

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