25 “Friends of the Court” File Briefs Urging U.S. Supreme Court To End Eminent Domain Abuse

John Kramer
John Kramer · December 9, 2004

Washington, D.C.—A diverse group including world-renowned urban policy scholar Jane Jacobs, civil rights groups including the NAACP and the Southern Christian Leadership Conference, the AARP, noted legal scholar Richard Epstein, and the American Farm Bureau among many others has filed amicus curiae (or “friend of the court”) briefs with the U.S. Supreme Court urging the justices to end eminent domain abuse in Kelo v. City of New London. Eminent domain abuse is where governments across the nation take one person’s private home only to hand that land over to another private party for their use. This landmark constitutional case, filed by the Institute for Justice, will decide whether the “public use” requirement of the U.S. Constitution allows the government to use eminent domain to take one person’s non-blighted home or small business so a larger business can make more money off that land and pay more taxes as a result. Each of the briefs mentioned here as well as others filed with the Court are available on the Institute for Justice’s website at www.ij.org/case/kelo.

Jane Jacobs

Jane Jacobs, author of The Death and Life of Great American Cities, submitted a brief co-authored with George Mason University School of Law professor Ilya Somin. In her brief, Jacobs criticized the clear-cutting of neighborhoods through eminent domain, as is taking place in New London, Conn. In her brief, Jacobs stated, “The costs of development takings are disproportionately inflicted on poor and minority communities, because these groups are disadvantaged in the political process, especially relative to the powerful corporate and private interests that benefit from economic development condemnations.” Jacobs underscored to the Court of her argument in Death and Life that the replacement of diverse neighborhoods with counterfeit development projects “destroys neighborhoods where constructive and improving communities exist and where the situation calls for encouragement rather than destruction.” She added “people who get marked with the planners’ hex signs are pushed about, expropriated, and uprooted much as if they were the subjects of a conquering power. Thousands upon thousands of small businesses are destroyed . . . . Whole communities are torn apart and sown to the winds with a reaping of cynicism, resentment and despair that must be seen to be believed.”


The National Association for the Advancement of Colored People (the nation’s oldest civil rights organization), AARP (the nonpartisan group whose 35 million members address the needs and interests of older Americans) and the Southern Christian Leadership Conference (founded by Dr. Martin Luther King, Jr.) joined with other organizations to roundly criticize the practice of eminent domain abuse that they argue “has and will continue to fall disproportionately upon racial and ethnic minorities, the elderly, and the economically disadvantaged.”

Richard Epstein & The Cato Institute

University of Chicago Law School professor Richard Epstein, one of the nation’s leading property scholars, co-authored a brief on behalf of the Cato Institute, a think tank dedicated to the protection of individual liberty. Among other points, Epstein criticized flimsy justifications given by legislators and developers for eminent domain use. Epstein points out that “governments can simply gin up pro forma findings that some benefits are expected from the project in question. Indeed, that’s exactly what happened in this case.”

Farm Bureau

The American Farm Bureau and the Farm Bureau Federations of 18 states and one county warned the Court that “[j]udicial review of whether property is being taken for public use must be real review” because “deference to legislative decision-making that is so abject as to accept at face value whatever justification a municipality puts forth is no judicial review at all. It is the antithesis.” Too often, the Farm Bureau warned, eminent domain is not used for a truly “public use” but instead on “speculative real estate ventures.”

Becket Fund for Religious Liberty

The Becket Fund for Religious Liberty, a public interest law firm dedicated to protecting the free expression of all religious traditions, reminded the Court in its brief that if “economic development”—the creation of jobs and taxes—can be a justification for taking private property by the government, then religious institutions will be put at great risk. The Becket brief stated, “Religious institutions will always be targets for eminent domain actions under a scheme that disfavors non-profit, tax-exempt property owners and replaces them with for-profit, tax-generating businesses. Such a result is particularly ironic, because religious institutions are generally exempted from taxes precisely because they are deemed to be ‘beneficial and stabilizing influences in community life.’” The brief states that affirming the Connecticut Supreme Court’s decision that permitted the taking would “declare open season on the taking of religious institutions of all faiths and functions.”

John Norquist

Former mayor of Milwaukee and current President of the Congress for New Urbanism John Norquist also filed a brief in favor of the homeowners. As a former public official, Norquist assured the Court that “prohibiting the exercise of eminent domain for purely economic development purposes will not prevent redevelopment given the array of other incentives available to government authorities interested in stimulating economic development.”

Law Professors Who Teach and Write on Property and Land Use

More than a dozen law professors who teach and write on property and land use issues asked the Court to apply a greater level of judicial scrutiny in deciding eminent domain cases for private development purposes. The brief, authored by Notre Dame Law School associate professor Nicole Garnett and William S. Richardson School of Law professor David Callies, warned “Under current federal standards, courts could approve virtually every exercise of eminent domain.”

Reason Foundation

The Reason Foundation, which promotes volunteerism and privatization as well as transparency and accountability in public policy, stated in its brief, “That [the government] may view the proposed development in this case as beneficial—in the form of increased tax revenue and a strengthened local economy—cannot alter the private nature of the use. This is simply an attempted transfer of property from one set of private owners to another. Declaring this use to be public would deprive the ‘public use’ language in the Takings Clause of any constraining force.”

National Association of Home Builders & National Association of Realtors

The National Association of Home Builders, whose 215,000 members constructed more than 1.77 million new housing units in 2004, and the National Association of Realtors, with more than one million members, recognized in their brief “that housing will almost never afford a community with the economic development benefits that a commercial application will. If economic development as a sole justification for public use is decided using a rational basis test with deference to local legislative bodies, then the door is left open for local governments to abuse their eminent domain powers and take developable land from NAHB members as they could from any other property