Intersting post by Ben Barros looks at the SCOTUS conference notes on Midkiff and Justice O’Connor’s effort to retreat in Kelo from the sweeping language she used there. An excerpt:
In light of the recent furor over Kelo v. New London, Justice O’Connor’s opinion in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), seemed like a good place to start. Midkiff was the Court’s leading pre-Kelo statement on the meaning of “public use” in the eminent domain context. The Court’s thought-process in Midkiff is interesting because Justice O’Connor’s opinion for a unanimous Court articulates a broad conception of public use that O’Connor later came to regret in Kelo.
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Justice O’Connor came to regret the broad language of Midkiff, noting in her Kelo dissent that “There is a sense in which this troubling result follows from errant language in Berman and Midkiff. . . . [W]e said in Midkiff that ‘[t]he “public use” requirement is coterminous with the scope of a sovereign’s police powers.’ This language was unnecessary to the specific holdings of those decisions.” I will address the rest of Justice O’Connor’s dissent in a future post, but this particular statement rings very true. The broad concepts articulated in Berman, and strongly reinforced in Midkiff, arguably mandated the result in Kelo. Had Midkiff in fact been decided in a narrow fashion based on its unique facts (among other things, unlike most exercises of eminent domain, it did not displace the people in possession of the homes being taken), Kelo may have come out differently. Or it may have come out as it did, but Justice O’Connor’s dissent wouldn’t have been weakened by the need to eat her own words.
Midkiff therefore contains a moral that the Justices and their clerks would do well to heed — the full consequences of grand statements of principle are rarely clear when articulated. They therefore should be used with great caution, because they might come back to bite you.
The most amusing hypothesis that I have heard to explain O’Connor’s “evolution” from Midkiff to Kelo is that she knew she was retiring at the end of this term, and Kelo represented her transition from Washington beltway cocktail parties to Arizona ranchers cocktail parties so she wanted to make sure that her personal popularity remained intact with the relevant constituencies. Talk about legal realism!
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