Kelo v. City of New London Behind the Scenes at IJ
By Dana Berliner
IJ client Susette Kelo and Senior Attorney Scott Bullock, who argued the case for IJ, meet the media immediately following the U.S. Supreme Court argument.
It was the morning of September 28, 2004, the second day after the U.S. Supreme Court returned from its recess. I don’t remember what I was working on when fellow IJ attorney Scott Bullock came into my office and said “The Court just granted cert in New London.” The next few days were a blur. Scott called all the homeowners while I drafted the press release. The phone rang off the hook.
And then we settled down to work. The Court takes less than one percent of the applications for review, and it hadn’t heard an important eminent domain case in more than 20 years. Selecting a strategic approach was important. Our primary goal has always been to get a ruling that taxes and jobs simply are not a constitutional reason for taking someone’s home or business away. We also knew that it is not a good idea to put all your eggs in one legal basket. Moreover, much as we want a ruling that “economic development” is not a public use, these particular condemnations have other flaws that the Court could rule on if they wanted another option.
There is a general doctrine that government should not take property if it doesn’t have a reasonably foreseeable use for it. Here, 11 of the homes are being condemned for . . . something or another—no one knows what, and the other four homes are being taken for an office building that the developer admits won’t be built in the foreseeable future. There is also a general eminent domain doctrine that says that when government takes property to give to other private parties, there should be some sort of contractual or statutory controls in place that guarantee the intended public benefit. In New London, there are none of those controls. We therefore put together a two-pronged strategy: first, we asked for a bright-line rule that taxes and jobs are not a public use, and then, if the Court did not accept that, we asked that the use of the property be reasonably foreseeable and that there be minimum standards in place ensuring public benefit.
After writing the brief, we began making lists of possible questions we thought the Justices could ask. We solicited questions from everyone at IJ, as well as many others. In the end, we had a list of more than 60 questions, and then we began working on answers. We held four “moot courts,” where IJ attorneys, professors or U.S. Supreme Court practitioners pretended to be Supreme Court Justices and asked questions as if it were oral argument. (As it had done in our case challenging New York’s bans on the direct shipment of wine to consumers, the Heritage Foundation organized a particularly helpful moot court.) Moot courts are an opportunity to see if a particular explanation makes sense and also to come up with still more possible questions. Our preparations paid off—we anticipated every major question the Justices asked.
The week before the argument, despite undergoing an emergency appendectomy, IJ Vice President for Communications John Kramer never missed a day of pounding the phones to promote the Kelo case. In Kramer’s absence from the office, IJ Communications Director Lisa Knepper admirably stepped up to direct the day-to-day media work. As a result of their combined efforts, dozens of editorial pages nationwide, including USA Today, editorialized for ending eminent domain abuse. The courtroom was absolutely packed on February 22, the day of the oral argument. People came from across the country to see it. Members of the public not in line by 2 a.m. did not get in. The families of every one of our New London homeowners came to the argument. It’s been more than four years since we began this legal journey, yet the whole group of homeowners has stuck together.
IJ attorneys and clients gather to talk to the media following the argument. People came from across the nation to see the argument. Members of the public not in line by 2 a.m. did not get in.
As 10 a.m. approached, we all sat down at the counsel table—Scott, me, Chip Mellor, and Scott Sawyer, New London counsel for the homeowners. The Justices sit only about ten feet away, but elevated high enough that I, being short, couldn’t see them when they leaned back. Unfortunately, neither Chief Justice Rehnquist nor Associate Justice Stevens attended oral argument, although we have been told that both will participate in the decision. Justice Thomas rarely asks questions, so that left six Justices actively participating in oral argument. The most telling moment came when Justice O’Connor asked the lawyer for New London whether a city could take a Motel 6 because a Ritz-Carlton would pay higher taxes. The answer, of course, was, “Yes.” As we have been saying all along, allowing eminent domain for increased taxes gives the government unlimited power to take property from one private party in order to transfer it to someone else. Justice Scalia also asked if the government could take from A to give to B if B would pay more taxes. Again, the answer was yes.
From the wide variety of questions and issues the Justices raised, one could tell that the Court had not seriously considered the meaning of “public use” in many years. They asked questions ranging from the differences between “public use” and “public purpose,” to the meaning of blight, and farther afield into taxation, compensation and many other issues. Although it is difficult to say, it appeared that some were more interested in our bright-line rule, while others found the idea of a reasonableness requirement more appealing. I won’t attempt to guess how the Court will decide the case, but it was obvious the Justices were concerned about the consequences of their decision.
We don’t expect a decision for several months, probably not until June, and in the meantime, we are actively working with communities across the country to cut back on the power of eminent domain. Regardless of the decision in Kelo, state courts will continue to be the main litigation arena for defending homes and businesses from private takings. And IJ will be right there, fighting in court, in the court of public opinion and through the Castle Coalition until cities once again respect the Constitution’s mandate that property may be taken only for “public use.”Dana Berliner is an IJ senior attorney.