Justice Samuel Alito was not on the Supreme Court when it handed down Kelo in 2005. However, today he revealed that he may not be a big fan of that decision. As Lyle Denniston of ScotusBlog points out, Alito has taken the unusual step of revealing that he voted against the Court's decision to deny a writ of certiorari for Goldstein v. Pataki, the controversial Second Circuit takings case that I blogged about here. As I indicated in my earlier discussion of Goldstein, the taking challenged in that case was clearly permissible under Kelo. Thus, the only likely reason why Alito (or any Supreme Court justice) might have wanted to consider Goldstein would be to overrule Kelo, or at least narrow its scope. Alito's vote to grant cert probably indicates that he at the very least has serious reservations about Kelo.
Moreover, it is extremely rare for the justices to reveal their votes on cert petitions. Alito's decision to break with standard practice in this case suggests that he may have wanted to send a signal about his attitude towards Kelo for the benefit of future litigants.
Whether Chief Justice John Roberts (the other justice appointed after Kelo was decided) shares Alito's views on these issues remains to be seen.
HT: Ilya Shapiro of the Cato Institute, who brought Alito's vote on Goldstein to my attention.
UPDATE: Ilya Shapiro (who, BTW, is not related to me, despite having the same first name), has written a post on this issue here.
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- Property Rights Three Years After Kelo, Part III - A New Cross-Ideological Coalition for Property Rights?
- Property Rights Three Years After Kelo, Part II - The State of the States:
- Justice Alito and Kelo:
- Property Rights Three Years after Kelo I - Why Kelo Was Better than Previous Supreme Court Public Use Decisions:...
- Political Ignorance and Post-Kelo Eminent Domain Reform:
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