Here's the latest (maybe last?) in a case we've been following for a long time.
On Friday, the Court denied the petition for writ of certiorari, with three Justices noting that they would have granted the petition. Justice Thomas, joined by Justice Gorsuch dissented from the denial of cert, while "Justice Kavanaugh would grant the petition[.]"
Here's Justice Thomas:
We should grant certiorari for two reasons.First, this petition provides us the opportunity to correct the mistake the Court made in Kelo. There, the Court found the Fifth Amendment’s “public use” requirement satisfied when a city transferred land from one private owner to another in the name of economic development. See 545 U. S., at 484. That decision was wrong the day it was decided. And it remains wrong today. “Public use” means something more than any conceivable “public purpose.” See id., at 508–511 (Thomas, J., dissenting). The Constitution’s text, the common-law background, and the early practice of eminent domain all indicate “that the Takings Clause authorizes the taking of property only if the public has a right to employ it, not if the public realizes any conceivable benefit from the taking.” Id., at 507–514; see also id., at 479 (majority opinion) (acknowledging that “many state courts in the mid-19th century endorsed ‘use by the public’ as the proper definition of public use”). Taking land from one private party to give to another rarely will be for “public use.” But see id., at 513–514 (Thomas, J., dissenting). The majority in Kelo strayed from the Constitution to diminish the right to be free from private takings. See generally id., at 505–523 (same).Second, even accepting Kelo as good law, this petition allows us to clarify the Public Use Clause and its remaining limits. Kelo weakened the public-use requirement but did not abolish it. In fact, the Kelo majority favorably cited an opinion that had concluded that a taking to prevent “future blight” violated the Public Use Clause. Id., at 487, and n. 17 (citing 99 Cents Only Stores v. Lancaster Redevelopment Agency, 237 F. Supp. 2d 1123 (CD Cal. 2001)). This Court should not stand by as lower courts further dismantle constitutional safeguards.Failure to step in today not only disserves the Constitution and our precedent, but also leaves in place a legal regime that benefits “those citizens with disproportionate influence and power in the political process, including large corporations and development firms.” Kelo, 545 U. S., at 505 (O’Connor, J., dissenting). This case is a prime example. Blommer is purportedly the largest cocoa processor and ingredient chocolate supplier in North America and worth $750 million dollars.* And Chicago has decided to use the coercive power of the government to give the company a valuable parcel of not-yet-blighted-land. According to the court below, this forcible transaction is permissible, in part, because “[r]ecognizing the difference between a valid public use and a sham can be challenging.” 26 N. E. 3d, at 521. I think that, if our doctrine makes it difficult to discern public use from private favors, we should grant certiorari to provide some much needed clarity.
One Justice short of the four needed to grant review.
So why was Justice Alito, normally one who you might expect to vote to grant the petition sitting out? No definitive answer of course, but here's some rank speculation. First, the case might not have been the perfect vehicle to reconsider overruling a fairly recent decision. The Illinois Appellate Court only addressed the public use issue after first concluding that the owner had failed to raise the issue by way of a motion for new trial. The court's public use ruling was an alternative one (even if the owner had property raised the issue, we'd rule against him). That might have been enough to make the case unworthy. Second, there's no telling exactly where many of the Justices are on Kelo or the lax Public Use rules generally. For example, Justice Kavanaugh did not join the dissent, and only voted to "grant the petition" without an indication of what he might do on the merits. And maybe CJ Roberts isn't as high on property rights in eminent domain as he appears to be in regulatory takings, even though back when, he hinted he wasn't on board with Kelo (but cf. this).
Read more about the case:
- Three Supreme Court Justices Signal Willingness to Reconsider Kelo v. City of New London - lawprof and takings scholar Ilya Somin
- Are there three, four, or five votes to overrule Kelo? - lawprof Josh Blackman, who follows SCOTUS nuances closely
- Supreme Court Refuses to Curb Government Power to Take Land - Greg Stohr, Bloomberg Law
You know this issue isn't going away, so stay tuned.
Eychaner v. City of Chicago, No. 20-1214 (U.S. July 2, 2021) (Thomas, J., dissenting)
