What I Hope to Learn from Justice Stevens’ Papers on Kelo v. City of New London

 

Yesterday, the late Supreme Court Justice John Paul Stevens’ papers from the start of his career through 2005 were made public by the Library of Congress (see here for the official guide to this archive). One of the cases decided in 2005 was Kelo v. City of New London, the hugely controversial Takings Clause property rights decision in which Stevens wrote the majority opinion for a closely divided 5-4 Court. The Takings Clause of the Fifth Amendment says the government only take private property for a “public use.” In Kelo, a narrow 5-4 Supreme Court majority ruled that almost any potential public benefit qualifies as “public use,” thereby permitting the City of New London to take fifteen residential properties for purposes of transfer to a new private owner in order to increase “economic development.” The ruling had a big impact on debates over takings law (both in the United States and around the world), and generated a massive political reaction. Over 80% of the public opposed the decision, and  45 states passed new eminent domain reform laws.

It turns out that the Stevens papers contain four large folders of material about Kelo! Within the next 24 hours, copies of these files will be in my possession, and I hope they will shed light on a number of unanswered questions about the case. Having written a book about Kelo, I have an obvious interest in these issues. But they are also likely to be of interest to other scholars, people interested in property rights issues, and others.

We actually already know a lot about Justice Stevens’ thinking about Kelo, because he spoke and wrote about the subject extensively after he retired from Supreme Court in 2010. In a 2011 speech about the case and in his memoirs, published in 2019, Stevens admitted he had made a  “somewhat embarrassing to acknowledge” error in his majority opinion, by misinterpreting precedent. He generously cited me as a “scholarly commentator” who “caught this issue shortly after we decided Kelo,” in an article I published in 2007. But Stevens continued to believe he got the result right, albeit for reasons very different from the rationale outlined in his majority opinion.

Despite these revelations, there are still a number of unanswered questions about the case that the Stevens papers may shed light on. Here are some things I hope to learn:

1. The ruling was a close 5-4 decision, with Justice Anthony Kennedy—the key swing voter—writing a hard-to-interpret concurring opinion. Was there ever any chance the case could go the other way? Did Kennedy flip a