The Volokh Conspiracy
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What I Hope to Learn from Justice Stevens' Papers on Kelo v. City of New London
The author of one of the Supreme Court's most widely hated rulings left us extensive files on the case, which have just been made public. They could help shed light on key unanswered questions about.
Yesterday, the late Supreme Court Justice John Paul Stevens' papers from the start of his career through 2005 were made public by the Library of Congress (see here for the official guide to this archive). One of the cases decided in 2005 was Kelo v. City of New London, the hugely controversial Takings Clause property rights decision in which Stevens wrote the majority opinion for a closely divided 5-4 Court. The Takings Clause of the Fifth Amendment says the government 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." The ruling had a big impact on debates over takings law (both in the United States and around the world), and generated a massive political reaction. Over 80% of the public opposed the decision, and 45 states passed new eminent domain reform laws.
It turns out that the Stevens papers contain four large folders of material about Kelo! Within the next 24 hours, copies of these files will be in my possession, and I hope they will shed light on a number of unanswered questions about the case. Having written a book about Kelo, I have an obvious interest in these issues. But they are also likely to be of interest to other scholars, people interested in property rights issues, and others.
We actually already know a lot about Justice Stevens' thinking about Kelo, because he spoke and wrote about the subject extensively after he retired from Supreme Court in 2010. In a 2011 speech about the case and in his memoirs, published in 2019, Stevens admitted he had made a "somewhat embarrassing to acknowledge" error in his majority opinion, by misinterpreting precedent. He generously cited me as a "scholarly commentator" who "caught this issue shortly after we decided Kelo," in an article I published in 2007. But Stevens continued to believe he got the result right, albeit for reasons very different from the rationale outlined in his majority opinion.
Despite these revelations, there are still a number of unanswered questions about the case that the Stevens papers may illuminate. Here are some things I hope to learn:
1. The ruling was a close 5-4 decision, with Justice Anthony Kennedy - the key swing voter - writing a hard-to-interpret concurring opinion. Was there ever any chance the case could go the other way? Did Kennedy flip at some point?
2. Justice Sandra Day O'Connor wrote the lead dissenting opinion, in which she forcefully criticized the majority and argued that the ruling placed all private property potentially at risk. O'Connor's Kelo dissent is historically important because it played a big role in breaking the seeming consensus in favor of a broad interpretation of "public use." Her endorsement of a relatively narrow definition of "public use" that excludes private "economic development" takings is at odds with her opinion for the Court in Hawaii Housing Authority v. Midkiff (1984), where she states that the public use requirement can be met so long as the government's objective in condemning property is "rationally related to a conceivable public purpose." In her Kelo dissent, O'Connor dismissed this passage from Midkiff as just "errant" language. But legal scholar Ben Barros has shown (using judicial papers from the time) that the justices were well aware of the implications of this ultra-permissive standard.
Clearly, something changed in O'Connor's thinking about public use between 1984 and 2005. Perhaps the Stevens papers will tell us what it was. When I was writing my book about Kelo, I asked to interview Justice O'Connor about her role in the case. But she politely declined.
3. Stevens later wrote that Kelo was "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." Did any of the justices anticipate the massive political reaction to the case? Did it influence the decision in any way?
4. Justice Antonin Scalia, the Court's leading advocate of originalism at the time, joined Justice O'Connor's mostly non-originalist dissent, but did not join Justice Clarence Thomas's much more originalist (and in my view much stronger) dissenting opinion. Why not?
5. Kelo remains highly controversial to this day. At least four current Supreme Court justices have expressed interest in revisiting and perhaps overruling it. I too would be happy to see Kelo reversed. Is there anything in the Stevens files that might strengthen the argument for doing so? Conversely, is there anything there that might strengthen the argument for leaving Kelo in place?
I suspect the answer to both questions is probably "no." Stevens has already helped the anti-Kelo cause tremendously by admitting he made a significant error in his majority opinion. The strengths and weaknesses of the decision are evident from the published opinions. But I could be surprised on this score.
The above is far from an exhaustive list of what might be learned about Kelo from Stevens' papers. It's just a few of the most important questions that occur to me, as a longtime student of the case. There could be revelations on other topics, too!
As soon as I have had a chance to review the files, I will summarize my findings, and post the summary right here on the Volokh Conspiracy blog, hosted by Reason. If the revelations are important enough, I will also write a longer academic article about the subject, or even a new edition of my book. Stay tuned!
UPDATE: I have now read the Stevens papers and summarized the key revelations here.
