Would Kelo v. City of New London Be Decided the Same Way Today?

The Supreme Court held 5-4 that the use of eminent domain to transfer private property from one private owner to another for the purpose of economic development satisfied the 'public use' requirement of the Fifth Amendment's Takings Clause. Justice Stevens's majority opinion concluded that economic development qualifies as a public use and that the Court should defer to legislative determinations about what constitutes a public purpose, even when the primary beneficiary of the taking is a private party.

Kelo provoked an extraordinary public backlash, uniting progressives and conservatives in opposition and generating more public outrage than perhaps any other Supreme Court decision of the twenty-first century. In response to the decision, more than 40 states passed legislation restricting the use of eminent domain for economic development, though scholars have debated the effectiveness of these reforms. The property at issue in the case was never developed as planned, becoming a symbol of the real-world failures of economic development takings.

The decision exposed deep tensions in property law between those who view private property as a bulwark against government overreach and those who view eminent domain as a necessary tool for community development and planning. The politics of Kelo defied traditional left-right categories, with libertarian and progressive critics uniting against the decision while some urbanists and economic development advocates defended it.

The modern Court's evolving property rights jurisprudence, including decisions strengthening protections under the Takings Clause in cases like Cedar Point Nursery v. Hassid (2021) and Tyler v. Hennepin County (2023), suggests a growing skepticism about governmental power over private property. This trend could create an environment in which Kelo's broad reading of 'public use' faces reconsideration.

Kelo's survival is uncertain because the current Court's composition and ideological orientation differ significantly from the Court that decided the case. The 5-4 majority relied on a deferential reading of 'public use' that aligned with the more liberal wing of the Court at the time. Justice O'Connor's dissent, joined by Chief Justice Rehnquist and Justices Scalia and Thomas, argued for a narrower reading of 'public use' that would prohibit takings whose primary purpose is to transfer property to a private party, even for economic development.

The current Court's conservative majority includes justices who are generally more protective of property rights and more skeptical of governmental power than the Kelo majority. Justice Thomas's Kelo dissent went further than O'Connor's, arguing that 'public use' should be interpreted to mean actual use by the public, not merely any purpose that benefits the public. The addition of justices sympathetic to this view could create a majority to overrule or significantly limit Kelo.

However, the extensive state legislative response to Kelo may reduce the practical urgency of overruling. With most states having adopted restrictions on economic development takings as a matter of state law, the federal constitutional question arises less frequently than it did in 2005. This may counsel the Court toward a case-by-case approach rather than a sweeping overruling.

The broader trajectory of the Court's property rights jurisprudence, including its recent expansion of per se takings doctrine and its willingness to scrutinize governmental justifications for property regulations, suggests a Court increasingly willing to enforce constitutional limits on government power over private property. Whether this trend extends to a formal reconsideration of Kelo or merely a narrowing of its application through future decisions remains to be seen.

The scholarly debate about Kelo encompasses both the proper interpretation of 'public use' and the broader role of property rights in constitutional law. Ilya Somin's comprehensive study of Kelo argues that the decision was wrong both doctrinally and as a matter of policy, documenting the failure of the New London development project and the disproportionate impact of economic development takings on poor and minority communities. Somin contends that a narrow reading of 'public use' would better protect vulnerable communities from displacement by politically connected developers.

Defenders of Kelo, including Thomas Merrill, argue that a narrow interpretation of 'public use' would unduly constrain legitimate governmental planning and development activities. Merrill contends that the real problem is not the constitutional standard but the inadequacy of just compensation, arguing that if property owners received full compensation including subjective and community value, the objections to economic development takings would largely disappear. This debate connects to broader questions about the relationship between constitutional rights, political process failures, and judicial oversight.

• Cedar Point Nursery v. Hassid (2021)
• Tyler v. Hennepin County (2023)
• Knick v. Township of Scott (2019)
• Murr v. Wisconsin (2017)
• Hawaii Housing Authority v. Midkiff (1984)