Institute for Justice Urges U.S. Supreme Court to Revisit Kelo;

John Kramer
John Kramer · September 3, 2013

Arlington, Va.—A case alleging housing discrimination now before the U.S. Supreme Court could have been stopped in its tracks if the High Court’s reviled 2005 ruling in Kelo v. City of New London hadn’t given a green light to eminent domain for private development, argues the Institute for Justice in a friend-of-the-court brief filed today. IJ, which represented the homeowners in Kelo, urged the Court to revisit the ruling in the next appropriate case.

The case now before the Court, Mount Holly v. Mount Holly Gardens Citizens in Action, Inc., asks whether the federal Fair Housing Act permits “disparate impact” discrimination claims. IJ takes no position on that issue and filed its brief in support of neither party. Instead, IJ points out that the redevelopment plan at the heart of the case—which would bulldoze a modest, predominantly minority neighborhood in Mount Holly, N.J., to build upscale housing—is a classic example of the abuse of eminent domain that the Supreme Court failed to stop in Kelo.

“Because of the Supreme Court’s failure to protect property rights, local governments like Mount Holly Township can and do ‘cleanse’ neighborhoods of certain categories of people in the vain hope that wealthier classes will move in,” said IJ Attorney Anthony Sanders, a co-author of the brief. “Had the Court in Kelo simply enforced the Fifth Amendment’s Public Use Clause, the homeowners in Mount Holly and others like them nationwide could have fought such speculative land grabs—and won.”

Read IJ’s amicus brief:

That Mount Holly’s redevelopment plan targets a lower-income, mostly minority neighborhood is, as U.S. Supreme Court Justice Thomas wrote in dissenting from Kelo, a “predictable consequence” of that ruling. IJ’s brief draws on scholarly research to show that Justice Thomas’ and Justice Sandra Day O’Connor’s warnings of disparate impacts from Kelo were correct. For example, recent research by IJ Director of Strategic Research Dick Carpenter published in the scholarly journal Urban Studies examined 184 areas targeted by eminent domain for private development and found that they disproportionately constituted poor and minority neighborhoods.

“Without constitutional protections, the victims of eminent domain abuse will inevitably be poor and predominantly minority communities,” said Lisa Knepper, an IJ director of strategic research and co-author of the brief. “Such communities are natural targets for schemes that aim to ‘upgrade’ the ownership of some properties to improve the economic lot of everyone else, and they typically lack the political clout and financial resources to successfully fight back.”

IJ’s brief also notes that, all too often, redevelopment schemes fall short of the grandiose promises of their government and private promoters—most notably in New London, Conn., where eight years after Kelo there is still no new construction. The land where homes once stood is a field of grass and wildflowers, and the city remains economically distressed. By declining to “second-guess” New London’s actions, the Supreme Court encouraged ill-conceived plans that destroy neighborhoods for development that never comes to be.

“However it rules, the Supreme Court should not be fooled into thinking Mount Holly’s redevelopment plan serves some laudable public purpose—it does not,” said Sanders. “Mount Holly’s destruction of a close-knit community is despicable, immoral and unconstitutional. The Court ought to know what it unleashed with Kelo, and in the next appropriate case, it ought to correct its mistake.”