The Volokh Conspiracy
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What I Learned From Justice Stevens' Papers on Kelo v. City of New London
There are several interesting revelations, including an unpublished dissent by Justice Antonin Scalia.
In my last post, I outlined some things I hoped to learn from Justice John Paul Stevens' papers about Kelo v. City of New London, the controversial 5-4 decision in which the Supreme Court ruled that the condemnation of homes for "private economic development" is permissible under the Takings Clause of the Fifth Amendment (which only allows takings that are for a "public use"). Stevens wrote the majority opinion. Kelo was an important decision that drew a massive political backlash (over 80% of the public opposed the ruling, and 45 states enacted eminent domain reform laws in reaction to it) and remains contentious to this day.
There are two big revelations. First, there was no vote switch. Five justices intended to uphold the takings from the beginning of the Court's deliberations. However, Stevens did apparently worry that he might lose the support of key swing voter Justice Anthony Kennedy. Second, Justice Antonin Scalia wrote a draft dissent [Update: I have put up Justice Scalia's draft dissent in a separate post, along with my comments on it], which he eventually chose not to publish (though he did join Sandra Day O'Connor's dissenting opinion).
Here is what I have learned about the answers to the five questions outlined in my previous post, plus a few additional revelations:
1. Was there a chance the case could have gone the other way? Did Justice Kennedy flip?
The evidence indicates that five justices, including Justice Kennedy, wanted to uphold the New London condemnations all along. However, Stevens seems to have been concerned that Kennedy might defect. At one point, he sent an e-mail to Roberto Gonzalez, his law clerk working on the Kelo case, saying that "I don't think we need to reply [to Justice Scalia's draft dissent] - of course we do need five votes, but I don't think this reference to Lawrence [v. Texas] is likely to be persuasive to AMK [Justice Kennedy]." This implies that Stevens was on guard about a potential switch by Kennedy, but thought that Scalia's draft dissent was unlikely to sway Kennedy into the dissenters' camp. Yet he also may have worried that some other argument might indeed be "persuasive to AMK."
Kennedy did not agree to join what became Stevens' majority opinion until just a few days before the Court's decision was issued on June 23, 2005. On June 16-17, Kennedy asked Stevens to make a number of changes to the majority draft, in exchange for his support, and Stevens agreed. Kennedy then finally agreed to join, but also authored a solo concurring opinion, which has confused takings lawyers and lower court judges ever since.
I won't go over them in detail here. But, in my view, the changes Kennedy requested mostly concern minor issues, and did little to change the bottom-line reasoning and effect of the Kelo decision. The admittedly limited available evidence suggests Stevens worried about the possibility of Kennedy flipping, but the risk probably wasn't all that high. We may never know for sure how great it actually was, at least not unless Justice Kennedy reveals his papers someday.
2. Why did Justice Sandra Day O'Connor, author of the lead dissenting opinion in Kelo, change her mind about "public use" between 1984 and 2005?
As discussed in my previous post, O'Connor endorsed a very broad view of public use in her opinion for the Court in Hawaii Housing Authority v. Midkiff (1984), but switched to a much narrower view in her influential lead dissent in Kelo, which garnered the support of four justices. Sadly, the Stevens papers shed no light on this important issue. We may know more when and if Justice O'Connor (who retired in 2005), releases her own papers.
3. Did any of the justices anticipate the massive political reaction against Kelo? Did it influence the decision in any way?
The files don't reveal any anticipation of the reaction Kelo would generate, on the part of any of the justices. That doesn't prove none of them foresaw it. But, if so, it isn't reflected in their communications with Stevens. I think some significant negative reaction was foreseeable based on the extensive media and public attention the case attracted even before the Court issued its ruling. But the justices may have been oblivious to this, or at least underestimated the extent of public anger.
4. Why didn't Justice Scalia join Clarence Thomas' strong originalist dissent?
As already noted, the Stevens papers reveal that Scalia authored a solo dissent of his own, that he ultimately chose not to publish. I will say more about it in a future post. Here, I will only note that the Scalia dissent says almost nothing about the text and original meaning of the Takings Clause, and therefore doesn't tell us anything about why he chose not to join Thomas. Nor is there anything else in the Stevens papers that bears on this question. Scalia did join Justice O'Connor's mostly non-originalist dissent.
In my view, outlined in my book about Kelo, the Thomas dissent is the best of the four opinions in the case. Scalia apparently had a different view. But we still don't know why.
5. Does anything in the Stevens files strengthen or weaken the case for overruling Kelo?
Kelo remains a highly controversial decision, and four current Supreme Court justices have expressed interest in overruling or at least revisiting it (I hope they do!). I don't think anything in the Stevens papers is likely to persuade many people to change their minds about the case. Certainly, there's nothing there as dramatic as Stevens' earlier public admissions that he made a "somewhat embarrassing to acknowledge error" in his interpretation of precedent in his majority opinion.
However, it's worth noting that Stevens' claim that the majority's broad view of public use is backed by "more than a century" of precedent figures prominently in all of his draft opinions contained in the files, and may have played an important rule in persuading other justices. This, of course, is the very thing Stevens later admitted he got badly wrong.
In a May 13, 2005 note conveying her decision to join Stevens, Justice Ruth Bader Ginsburg praised the draft opinion for being "as clear and fair as can be in conveying our precedent and where it leads in this case." Would she and others have been so quick to join Stevens' opinion if they knew its analysis of precedent was based on an "embarrassing to acknowledge error"? Impossible to know for sure. But there is at least room for doubt on that score. And it would only have taken one defection to shift the outcome in the case.
In addition to providing insights on two or three of the questions I raised in my earlier post, the Stevens papers also include a few other interesting revelations about the case:
6. "A fine teaching opinion."
In the same note where she praised Justice Stevens' draft for its analysis of precedent, Justice Ginsburg also called it a "fine teaching opinion." And so it was! But not in the way Ginsburg had in mind. Stevens' ruling had the effect of awakening public opinion to the reality that Supreme Court precedent allowed government to condemn private property for almost any reason it wants. That generated the broadest political backlash against any modern Supreme Court opinion. In his 2019 memoir, Stevens called it "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."
In combination with O'Connor's and Thomas' dissents, the Stevens opinion also helped awaken elite legal opinion to some of the serious flaws in the broad view of "public use" and thereby broke the seeming expert consensus on that question.
7. Stevens probably knew the New London redevelopment plan was likely to fail.
The justification for the Kelo condemnations was the need to promote "economic development" in New London, Connecticut by transferring the condemned property to a private developer who would supposedly put it to more productive use. In his opinion for the Court, Stevens highlights New London's "carefully considered development plan" and distinguishes this from cases where there is no such plan, and therefore stronger suspicion that the condemnation was undertaken purely to benefit a private party.
In reality, Stevens had good reason to question whether there really was any "carefully considered" plan. The files contain a memo from Stevens' law clerk Roberto Gonzales, in which he includes several media articles documenting the flaws of the redevelopment plan. "Overall," writes Gonzales, "they present a pretty dim picture of the prospects of the plan," though he also notes that the "'facts'" in the articles "are certainly not before us in this case." This adds to the extensive evidence of the plan's flaws that was in the official record before the Court - including that the trial court had invalidated 11 of the 15 condemnations precisely because the City had no clear plan for how to use the land it was trying to take.
As it turned out, the plan's prospects were indeed "dim." To this day, nothing has been built on the condemned land, and its only regular users are a colony of feral cats [but see update below].
I don't think this fact by itself proves Stevens got the decision wrong. If you combine a broad definition of "public use" with an ultradeferential approach to government planners' judgment, then it can still make sense to uphold the New London takings. Nonetheless, given what he knew, Stevens should at least not have relied so heavily on the planning process in justifying his decision.
8. Seven of nine justices wanted to hear the case.
Most experts - myself included - were surprised that the Court decided to hear the Kelo case. The conventional wisdom was that the Court had already definitively endorsed a broad definition of public use in Berman v. Parker (1954) and Hawaii Housing Authority v. Midkiff (1984), and therefore there would be little interest in revisiting the issue. I think Berman was a terrible decision - worse than Kelo. But I too recognize that it endorsed an extremely broad view of public use, even broader than that Stevens ultimately endorsed in his majority opinion. Stevens was wrong to claim his position was backed by "more than a century" of precedent, but right to believe it was supported by Berman and Midkiff.
The Stevens papers suggest the justices may have seen the precedent as less definitive than most outside experts did. They reveal that seven of the nine justices (all but Ginsburg and David Souter) voted to hear the case. Supreme Court rules only require the agreement of four justices to grant a petition for certiorari.
The files also include a September 27, 2004 memo written by Stevens clerk Melissa Beth Arbus, in which she evaluated whether the Court should take the case. Stevens was the one justice, at the time, who did not participate in the "cert pool" in which clerks for the other justices divided up petitions for certiorari and made common recommendations to the Court on whether to grant them. The Kelo cert pool memo isn't in the file, probably because Stevens didn't participate in the pool.
Arbus wrote that Kelo would be a good vehicle for "elaborating or clarifying 'public use' doctrine" and that the justices could potentially vote to strike down the New London takings without overruling Berman and Midkiff, because "neither case directly addressed the particular public purpose at issue here - economic development in a non-blighted area." This distinction, of course, foreshadows the very similar one made in Justice O'Connor's dissenting opinion.
There are also some less significant revelations that I will not cover in this already long post. But I may include them in a future academic article.
In sum, despite the absence of truly earth-shattering revelations, the Stevens papers deepen our knowledge of the case in several ways. I will consider Justice Scalia's draft dissent in a follow-up post. Stay tuned!
UPDATE: My post on Scalia's dissent is now available here.
UPDATE 2: The condemned property was recently sold to a developer and there may soon finally be some new construction there, eighteen years after the Supreme Court's decision.
