Could the Supreme Court overturn the Kelo decision?

In this July 2001 Day file photo, Scott Bullock, right, of Institute for Justice, speaks on behalf of Fort Trumbull homeowners prior to the start of their trial against NLDC in New London Superior Court.  (Day file photo)
In this July 2001 Day file photo, Scott Bullock, right, of Institute for Justice, speaks on behalf of Fort Trumbull homeowners prior to the start of their trial against NLDC in New London Superior Court. (Day file photo)

New London — Ten years ago today, the U.S. Supreme Court handed down a ruling that has been called “unpopular” and one in a list of “mistakes of political judgment.”

And that’s just from the justices who decided the case.

Justice John Paul Stevens, who wrote the court’s majority opinion in Kelo v. City of New London, upholding the New London Development Corporation’s use of eminent domain to seize property in the name of economic development, has said there is no doubt the Kelo decision was the most unpopular opinion he wrote in his 34 years on the U.S. Supreme Court.

“Indeed, I think it is the most unpopular opinion that any member of the court wrote during that period,” the now-retired justice said in a 2011 lecture.

Stevens also acknowledged he made a mistake in interpreting previous case law that related to Kelo, though he said the correct interpretation would not have changed his vote.

Justice Stevens was not immune to the national backlash against the high court and the use of eminent domain in the wake of the Kelo decision, when public opinion polling showed that as much as 95 percent of the public disagreed with the court’s ruling.

“I had people at a bridge game stop me and ask, ‘How could you have written that opinion? We thought you were a good judge, but we learned otherwise,’” Stevens told the Wall Street Journal in 2011. “But you can’t explain the whole law of eminent domain to your bridge opponents.”

So if a Supreme Court decision is acknowledged to be wildly unpopular even by the justice who wrote the opinion, and polls show a majority of the public disagrees with the decision, might the Supreme Court overturn its ruling?

“What we can decide, we can undecide,” Justice Elena Kagan wrote in a decision in another case handed down by the court on Tuesday.

Opponents of the use of eminent domain, including attorneys and legal scholars, have said they think the Supreme Court will someday reexamine the Kelo ruling and overturn the decision.

“I think it will happen eventually,” said Scott Bullock, the Institute for Justice attorney who represented seven Fort Trumbull neighborhood property owners before the Supreme Court. “It is not widely supported among the public, it was a very closely divided 5-4 decision and even Justice Stevens admitted he had made mistakes in his opinion. I’m confident it will eventually be overturned.”

When asked if he thinks the decision could be overturned, Thomas J. Londregan, the attorney who represented the city at the time of the Kelo case and partnered with counsel for the NLDC to defend the takings, responded simply, “No.”

Referring to possible future cases, Londregan said, “Where there are substantial and significant municipal benefits and uses in the plan, urban cities will be successful.”

For the high court to overturn the decision it would first have to agree to hear a case similar to Kelo, one that also addresses the question: “Is economic development a sufficient public use as described in the Fifth Amendment?”

Since 1810, the Supreme Court has overturned — in part or in whole — more than 100 of its previous decisions.

Perhaps the best-known decision to be overturned by the court is Plessy v. Ferguson, which in 1896 upheld state laws requiring racial segregation under the doctrine of “separate but equal.” That doctrine was overturned in 1954 with the Brown v. Board of Education ruling.

Supreme Court Justice Antonin Scalia, who voted with the dissenters in the Kelo case, has said he has “no doubt” the court will eventually overturn Kelo.

“Kelo will not survive,” he said last year in an address to University of Hawaii law students. “I think the court was surprised by the reaction nationwide.”

The outspoken justice has also said that he counts the Kelo decision alongside two other Supreme Court rulings as “mistakes of political judgment.”

The other two cases Scalia cited were Dred Scott v. Sanford, which in 1857 ruled that African Americans could not be American citizens, and Roe v. Wade, in which the court declared many state bans on abortion unconstitutional.

“This case actually well fits the types of cases that are traditionally more vulnerable to overruling,” said Ilya Somin, a professor at George Mason University School of Law who has written extensively about the Kelo case and eminent domain. “Social science data show that close 5-4 decisions are more likely to be overturned than more lopsided ones. It also shows that decisions that are more controversial are more likely to be overturned.”

Somin said that if the court is going to overturn Kelo, it would likely happen in the next 10 to 20 years.

The national backlash against the Kelo decision put something of a temporary moratorium on the use of eminent domain powers as states began taking action to tighten restrictions on takings.

According to the Institute for Justice, 47 states have instituted laws providing for additional safeguards, constraints and, in some cases, prohibitions, concerning the taking of private property since Kelo was decided.

“Many states have looked at this after Kelo and made their own path,” said attorney Edward B. O’Connell Jr. of the New London law firm Waller, Smith and Palmer, who handled real estate transactions for the NLDC. “Now that there are a variety of methods at the state level, it may be difficult to find another case that is applicable to all these scenarios."

In the Kelo case, O’Connell said, there was “no pretext, no ulterior motive” because the City Council-approved Municipal Development Plan spelled out exactly what the city and NLDC planned to do.

But O’Connell and Bullock agreed that a hypothetical case involving eminent domain takings for an ulterior motive — something the court addressed in the Kelo majority opinion — could be considered by the court and could open the door to Kelo being overturned.

“If a case can show that they are pretextual takings, that case could get up before the Supreme Court and the court could decide that they should reexamine Kelo to decide if it made the correct decision,” Bullock said.

Bullock said he thinks new cases that could lead to Kelo being overturned might soon begin percolating as the economy continues to rebound and cities regain an appetite for similar economic development projects.

“There was a downturn in the economy, the commercial real estate economy cooled off, and then so did the desire to do this type of project,” he said. “As time passes and the commercial real estate market comes back, there will be calls to modify the laws, maybe to get around the laws. Controversy will start bubbling up again and perhaps the court will recognize that this is starting to be a problem again.”

Staff Writer Ann Baldelli contributed to this report.

c.young@theday.com

Twitter: @ColinAYoung

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