Supreme Court Refuses to Hear Case that Might Have Led to Overruling of Kelo v. City of New London

We don't know why the justices chose not to take it.

Susette Kelo's famous "little pink house," which became a nationally known symbol of the case that bears her name. (Institute for Justice.)

 

Today, the Supreme Court denied the petition for certiorari in Bowers v. Oneida County Industrial Development Agency, a case in which the Institute for Justice sought to persuade the Supreme Court to overrule Kelo v. City of New London (2005). Kelo was the controversial case in which the  Court held that the government could use eminent domain to take property in order to promote private "economic development," even though the Fifth Amendment says property can only be taken for a "public use."

I and other property rights advocates very much hoped the Court would take this case. I outlined the reasons why in an amicus brief I wrote on behalf of the Cato Institute and myself.

Today's outcome is disappointing. And, as is their usual practice, the justices did not give any reasons for why they chose not to hear a case, so we are left wondering why they didn't like Bowers, and what it would take to get them to hear another case on this issue.

However, as explained in our brief, "pretextual" takings doctrine is a big mess, and four current Supreme Court justices have expressed interest in revisiting or overruling Kelo. So there is yet hope they will take another case addressing this issue, perhaps even in the near future.

Comments

[Brett Bellmore]

So, the Court as an institution did not say why they refused the case, but there are 4 members interested in over-ruling Kelo. (Enough to grant cert, if they'd thought this was a good vehicle!)

Why not ask them?

My guess would be, 5 justices don't actually want to overrule Kelo.

[Joe_dallas]

Yes very likely 5 that would like to keep kelo. Much easier to rule against the plain meaning of the constitution when there is existing precedent

[SMP0328]

Four want to overrule Kelo. There may be at least one Justice on the fence, but those four don't want to take the chance that Kelo would get reaffirmed. They are biding their time in hope of a solid fifth vote materializing.

[wvattorney13]

The problem with overruling Kelo is twofold:

1) You have at least 2 of 3 of Barrett, Roberts and Kavanaugh that aren't in the overruling business for many years after Dobbs. They are gun shy.

2) If you read Stevens' Kelo opinion you are left very unsatisfied, outraged even, but are still left in opposition with an unprincipled way of preserving modern governmental acts like zoning ordinances, and describing things as public that decades ago would have been indisputably considered private. What would overruling Kelo look like on the ground. Would the government be able to take land to build a sports complex but pay a private entity to manage it? At its core, overruling Kelo would seem to take us back to an 1880s land management plan--which is no plan.

[MaddogEngineer]

Both good points. I think for #2, there should have to be some non-pretext government involvement in the land usage going forward. I agree it's a difficult thing to define, but think your example of a sports complex should be able to qualify. That sounds challenging to articulate in a precedent decision, distinguishing from the Kelo situation.

The city of Philadelphia was starting down that path to build a new downtown arena for the 76ers, until the team struck a deal to stay in the South Philadelphia sports complex. Many would say that the South Philly sports complex was a public good, the likes of which might not have happened if we retreated too much a flexible definition of public usage which came into vogue in the 1960's (when that complex was first built.) Of course, Veterans Stadium at least was owned and ultimately somewhat operated by the city.

I also acknowledge that many people would like a sports complex not to qualify. This is as much about the taxpayer dollars utilized to build public arenas for billionaires, as opposition to eminent domain on some constitutional principle.

In the case of the Sixers arena, while lip service was paid to greater economic development, it was not the prime, generic motivation. The area was not in need of the revitalization that the government claimed was its desire in the Kelo case. It was prime (if under-developed) real estate near center city, and what was to be built was clearly defined up front. Maybe such specificity is the key in an updated judicial precedent.

[wvattorney13]

I think it is important for any future Kelo decision. We want to allow for public use of taking of land while preventing private.

There was a time in not so recent history were building a sports venue would have been considered a wholly private act. You own a baseball team, you have an idea to make money so you build the park for the team to play and charge customers an admission price and hope to make a profit. It was considered as private as any other business.

But cities have used eminent domain for sports venues since at least the 1960s as you have observed because they note the public benefits (whether real or imagined) from spending public money to build stadiums. Doesn't that sound exactly like the public benefit in Kelo? And how far is it from that to saying that a kid's lemonade stand is public because thirsty passers by can get a drink when they want?

Actually I am having a hard time thinking of any land use, or even a non-land use that doesn't somehow benefit the public according to the sports stadium theory. And then when we do that we are in Kelo-land, despite overwhelming hatred for Kelo and loving our public financing of stadiums.

[Squirrelloid]

Public moneys for sports teams have always been wrong. The claimed benefits never materialize. Cities always lose money on it. They should never qualify for public use in any sense, because they are for-profit private enterprises, not public goods. (That at least some of the public enjoys something does not make it a public good). The sole exception may be the Green Bay Packers, who are not a private enterprise, and even then... I don't think eminent domain should be allowed to build them a new stadium.

The 19th century concept of public was the right one. Kelo was objectively wrong, and public financing of stadiums is wrong. Zoning is also largely wrong. The government should only be involved in land-use decisions at the point where some activities are noxious and hazardous to their neighors. Otherwise, the owner of the land should get to choose what they do with it.

[Brett Bellmore]

#2 is a persistent problem for originalists, on one topic after another: We went so long with the courts practicing living constitutionalism, before originalists gained enough purchase in the judiciary to do more than piss and moan, that the anti-originalist rulings had time to become the basis of our present system of government. Returning to genuinely constitutional government would be vastly disruptive.

For those of us outside the legal system, there's no obstacle to just admitting that the law is an ass, and wide swaths of legal practice are illegitimate at best. It's not like anybody in government cares what we think.

But for those who have to work within it, that's a very tough position to maintain. What principled basis is there for restoring constitutional government gradually? You'll be confronted by one case after another where principle says existing precedent is dead wrong. Principle says take a wrecking ball to the whole rotten edifice!

This is part of why I advocate a constitutional convention: Sure, the edifice is rotten, but at this point it might be better to genuinely legitimize some parts of it, than just say all we can do is blow it up, and than just blanch at the prospect and give up by inventing doctrines like "liquidation".

[David Nieporent]

But for those who have to work within it, that's a very tough position to maintain. What principled basis is there for restoring constitutional government gradually? You'll be confronted by one case after another where principle says existing precedent is dead wrong. Principle says take a wrecking ball to the whole rotten edifice!

You know, many years ago here at the VC (probably pre-Reason), Sasha Volokh wrote about how the government taxing people to defend the earth from being hit with an asteroid violated his interpretation of libertarian principles. But I think he was doing it as a thought experiment, not sincerely saying that if the situation actually arose he would fight against asteroid defense.

But I give you credit for being that sincere. Knocking down a building with yourself still inside just because you can't up with a "principled basis" for not doing so may be autistic, but it is certainly bold. As I posted in one of the threads the other day, even Ayn Rand wasn't this dogmatic: https://vxtwitter.com/TimothySandefur/status/1902525581834776597

[The Margrave of Azilia]

He wants a Con Con II to "genuinely legitimize some [illegitimate] parts of" the bad current system. That actually seems like a least-bad option since it *doesn't* pull the house down.

[MaddogEngineer]

I agree it's regrettable the Court did not agree to hear the case. I'm also reminded that a horseshoe theory of Supreme Court punditry might exist between Blackman and Somin.

[SRG2]

It would be uncharitable to suggest that, post-Kelo, major developers could see the advantage of the decision when some poor schlub was standing in the way of their private redevelopment, and so got the message to their pet justices, that they would rather Kelo stayed.

[JoeFromtheBronx]

Kelo took private property, with compensation, as part of a public program to promote a public purpose. In that fashion, following long precedent, the public was "using" the property.

It did not simply take property from one person to another person. It did not promote blatant favoritism or other problems cited by Kennedy in a concurrence. Yes, it was a nice pink house and that made it personally sentimental. Maybe, as one law professor wrote in a Verdict piece at the time, there was a 4A concern there.

Maybe, they will take a "pretext" takings case at some point but one or more of the cases you have highlighted here seemed more of a local policy concern than something they would reach out to take. And, the "little pink house" bit was a more attractive set of facts than one or more of them too.

[Brett Bellmore]

"It did not simply take property from one person to another person."

You're being awfully generous about what happened. Kelo took private property, with (as usual) inadequate compensation, in order to give the property to, yes, exactly another person, who it was supposed would make a use of it that would pay more taxes.

The "public use" was the new private owner paying taxes, as we all do. If you call that "public use" everything is "public use".

It was nothing but a sophistry to abolish one of the constitutional requirements for a taking.

[Squirrelloid]

"It did not simply take property from one person to another person."

It absolutely did. You're egregiously gaslighting here.

[TomL]

I know why they refused to overrule Kelo — because it is good law! The State of Connecticut invested 50 million (70 million counting restoring Fort Trumbull) into the ground of the peninsula producing public benefits and public uses- environmental cleanup of brownfields- public access to Thames River public walkways along the river all new infrastructure and the list goes on….. After this investment there were pads for development just as there are after a "blight" taking. Fact was the City's Redevelopment Agency found the peninsula to be "blighted" but the State wanted to give its money to the Economic Development Corporation and not the City.