Overruled (21 page)

“I read the letter and saw that it was exactly the type of situation we were working against,” Bullock later recalled. So he got on the
telephone to Kreckovic to get more information. “That led to me traveling to New London and going to the little pink house and meeting Susette and the other property owners and some of the local activists and going on from there.”

At that point, Kelo and her neighbors had already been fighting New London and the NLDC for more than two years, but a major new battlefront was about to open up. Although nobody realized it at the time, Kreckovic's letter had just launched a five-year courtroom odyssey that ultimately took Kelo, Bullock, and their allies from the Superior Court of New London, where they won a partial victory after a seven-day bench trial in 2002, to the Connecticut Supreme Court, where the property owners lost on all counts in 2004, and finally to the highest court in the land in 2005, where the justices of the U.S. Supreme Court would consider the following question: “What protection does the Fifth Amendment's public use requirement provide for individuals whose property is being condemned, not to eliminate slums or blight, but for the sole purpose of ‘economic development' that will perhaps increase tax revenues and improve the local economy?”
35

The “Theme of Judicial Deference”

According to city officials in New London, they needed to seize the properties owned by Susette Kelo and her neighbors in order to bring about a sweeping plan for the “revitalization” of the ninety-acre Fort Trumbull neighborhood that was designed to piggyback on the new Pfizer facility. That redevelopment would ultimately benefit the rest of the city, those officials claimed, through the creation of new jobs and increased tax revenues. As the city saw it, those results obviously qualified this taking of private property as a legitimate public use.

The Connecticut Supreme Court agreed. Pointing to what it called the U.S. Supreme Court's “theme of judicial deference to the
legislative public use determination,” the Connecticut high court's March 2004 decision applied that same approving standard to New London's planned condemnations in Fort Trumbull. According to the Connecticut Supreme Court, so long as “the appropriate legislative authority rationally has determined” that a proposed economic development project will create jobs, increase taxes, or otherwise benefit the city, it constitutes “a valid public use for the exercise of the eminent domain power under either the state or federal constitution.”
36

That “theme of judicial deference” included not only the Supreme Court's 1954 ruling in
Berman v. Parker,
it also included a more recent opinion, the Court's 1984 ruling in
Hawaii Housing Authority v. Midkiff.
In that case, the Court had cited
Berman
extensively while upholding Hawaii's seizure of private property for the purposes of breaking up what it called a land oligopoly, a situation where nearly half of the island's lands were in the possession of seventy-two private owners. “When the legislature's purpose is legitimate and its means are not irrational,” the Court declared in
Midkiff,
borrowing language from the rational-basis test, “our cases make clear that empirical debates over the wisdom of takings—no less than debates over the wisdom of other kinds of socioeconomic legislation—are not to be carried out in the federal courts.”
37
Translation: The Supreme Court would practice judicial deference in public use cases.

Bullock and his IJ colleagues had no illusions about the difficult task they faced under those two sweeping precedents. Indeed, as a law student, Bullock had been taught that the public use provision of the Takings Clause was effectively meaningless thanks to the Supreme Court. “The professor's attitude was, ‘this used to be a controversy but now basically anything goes. Let's turn to other issues,'” he recalled with a grim laugh. On top of that, the author of the majority opinion in
Midkiff
was none other than Justice Sandra Day O'Connor, a moderate conservative who was still sitting on the Court. To say the
least, O'Connor was not going to be interested in overruling her own previous decision. Yet in order to win the case, the Bullock team was going to need her support.

“We knew it was going to be hard to cobble together five votes” to overturn
Berman
and
Midkiff,
Bullock explained. So IJ decided not to ask. “That was something that we said was an option,”
38
but they basically left it at that in their briefing. Instead, IJ argued that
Kelo
was distinguishable from
Berman
and
Midkiff
because in those earlier cases the government had used eminent domain to remove two immediate public problems: namely, blight and oligopoly. In
Kelo,
on the other hand, no comparable social ills were in need of correction. In fact, far from being blighted, Fort Trumbull was a respectable working-class neighborhood full of residents who loved their well-tended homes and had no desire to move out. One of IJ's clients in the case, a woman named Wilhelmina Dery, still lived in the very same Fort Trumbull house where she was born in 1918. She had never lived anywhere else.

“To petitioners, like most Americans, their homes are their castles,” IJ told the Supreme Court in its main brief. “In this case, they face the loss of the homes and neighbors they cherish through the use of eminent domain not for a traditional public use, such as a road or public building, nor even for the removal of blight.” Instead, the city of New London seeks “to take Petitioners' 15 homes to turn them over to other private parties in the hope that the City may benefit from whatever trickle-down effects those new businesses produce.”
39
Yes,
Berman
and
Midkiff
granted the government broad powers to take private property, IJ acknowledged. But those precedents did not authorize anything as far reaching as what New London wanted to do here. To uphold the city's actions, IJ maintained, would require “a dramatic departure from this Court's jurisprudence.”
40

Meanwhile, as Bullock and his colleagues were putting the finishing touches on their legal arguments, IJ was assembling an impressive
cast of bipartisan allies to lobby the Supreme Court with friend-of-the-court briefs filed on Susette Kelo's behalf. Among those who joined the property rights side were parties ranging from the libertarian Cato Institute to the famous urban theorist Jane Jacobs, author of
The Death and Life of Great American Cities.
But perhaps the most notable support of all came from the NAACP, which told the Supreme Court that “Elimination of the requirement that any taking be for a true public use will disproportionately harm racial and ethnic minorities, the elderly, and the economically underprivileged.” To rule in New London's favor, the NAACP said in its brief, “would virtually eliminate judicial review and fail to protect the rights of already disadvantaged groups from majoritarian pressures.”
41
With the NAACP now officially allied with the libertarians, IJ co-founder Clint Bolick's original civil rights strategy had come full circle.

Eminent Domain on Trial

When the Supreme Court assembled to hear oral argument in
Kelo v. City of New London
on the morning of February 22, 2005, it did so with two empty seats on the bench. Chief Justice William Rehnquist was at home that day, battling the thyroid cancer that would claim his life seven months later. Justice John Paul Stevens, meanwhile, was stranded at the airport in Florida, his flight back to Washington delayed due to bad weather. That left Justice Sandra Day O'Connor, the most senior justice in attendance, to call the proceedings to order.

“We will now hear argument in the case of
Kelo v. City of New London,
” she announced at 10:12 a.m. “Mr. Bullock.”

“Justice O'Connor, and may it please the Court,” Bullock began, employing the traditional opening used by all parties who appear before the Supreme Court. “This case is about whether there are any limits on government's eminent domain power under the public use
requirement of the Fifth Amendment. Every home, church or corner store would produce more tax revenue and jobs if it were a Costco, a shopping mall or a private office. But if that's the justification for the use of eminent domain,” he stressed, “then any city can take property anywhere within its borders for any private use that might make more money than what is there now.”
42

It was IJ's entire case in miniature. New London wanted to bulldoze a working-class neighborhood and replace it with various upscale businesses operated on a for-profit basis. That was not a legitimate public use under the Constitution, IJ said; it was public power unleashed on behalf of private gain.

But the Court's liberal justices did not quite see it that way. “Mr. Bullock, you are leaving out that New London was in a depressed economic condition,” interjected Justice Ruth Bader Ginsburg as Bullock was wrapping up his opening statement. “The critical fact on the city side, at least, is that this was a depressed community and they wanted to build it up, get more jobs.” Bullock responded that while New London may have been experiencing some economic troubles, the Connecticut law at issue actually allowed any city in the state to employ eminent domain for any economic development purposes at any time, not just in those cases where the municipality was facing some specific financial hardship. “Every city has problems. Every city would like to have more revenue,” he argued. “But that cannot be a justification for the use of eminent domain.”
43

Meanwhile, Justice Stephen Breyer was wondering whether the Supreme Court had any business reviewing the city's determination of what counted as a legitimate public use in the first place. “There is no taking for private use that you could imagine in reality that wouldn't also have a public benefit of some kind, whether it's increasing jobs or increasing taxes, et cetera. That's a fact of the world. And so given that fact of the world,” Breyer said, “virtually every taking is alright,
as long as there is some public benefit, which there always is, and it's up to the legislature.”

That statement frustrated Bullock, and he did his best not to show it. Under Breyer's logic, he thought, the public use requirement might as well be erased from the Constitution. “Your Honor, we think that cuts way too broadly,” he responded. “Because then every property, every home, every business can then be taken for any private use.”

But Breyer refused to budge. “No,” he snapped back in response. “It could only be taken if there is a public use and there almost always is.”
44

The next line of attack came from Justice David Souter, who wanted to know what was wrong with a city's acquiring private property for the purposes of redevelopment. Assume that instead of using eminent domain, Souter said, the city just used money from its tax coffers to buy up the land and then sold it to a developer. “Would you say just within the general understanding of proper governmental purposes that the city was acting in a way that had no legitimate public purpose?”

Bullock agreed that Souter's hypothetical would be legitimate. So then “why isn't there a public purpose here?”
45
Souter asked. Because the Takings Clause of the Fifth Amendment imposed additional restrictions on government power, Bullock answered.

Justice Antonin Scalia then entered the fray with a question that reshuffled the entire debate. “Mr. Bullock, do you equate purpose with use?” he asked. “Does the public use requirement mean nothing more than that it have a public purpose?”

“No, Your Honor,” Bullock replied.

“But if that is your answer,” Souter promptly piped back up, “then the slum clearance cases have got to go the other way.”
46

Bullock had just entered a minefield, and he knew it. In its 1954 decision in
Berman v. Parker,
the so-called slum clearance case from
Washington, D.C., the Supreme Court had granted Congress wide latitude in determining what counted as a public use under the Fifth Amendment, and in the course of doing so, the Court had used the phrase “public purpose” as if it were synonymous with the phrase “public use.” “The legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation,” Justice William O. Douglas had written in
Berman.
“The role of the judiciary in determining whether that power is being exercised for a public purpose is an extremely narrow one.”
47

To make matters worse for Bullock, in its 1984 opinion in
Hawaii Housing Authority v. Midkiff,
the Supreme Court had quoted extensively from
Berman
and also adopted that case's “public purpose” formulation in an opinion written by Justice Sandra Day O'Connor, who was now sitting just a few feet in front of him. Bullock therefore needed to distinguish
Kelo
from
Berman
and explain why the slum clearance case could stay on the books even if his clients won the case.

The difference, Bullock explained, hewing closely to the arguments laid out in IJ's brief, is that in
Berman,
“the public purpose, if you want to call it that, was served once the blight was removed.” By the same token, in
Midkiff,
“the public purpose was served once the oligopoly was broken up.”
48
In both cases, “the public purpose was direct and immediate.”

By contrast, he told the justices, in this case “the only public benefits that come about, if they come about at all, are completely dependent upon private parties actually making a profit.”
49
It was trickle-down economics, he said. There was nothing direct or immediate about it.