Kelo is one of the most severely flawed and much-criticized decisions in modern Supreme Court history. The Court’s holding that private “economic development” qualifies as a “public use” sufficient to authorize the use of eminent domain to take private property is deeply at odds with text and original meaning, and based on a variety of other errors. Justice John Paul Stevens, author of the Court’s majority opinion in Kelo, later admitted its reasoning was based, in part, on an “embarrassing to acknowledge” error in interpreting previous precedent. In addition, Kelo has generated widespread confusion in state and lower federal courts because of its lack of clarity on what qualifies as a “pretextual” taking that remains invalid even under the Court’s otherwise highly deferential approach to review of condemnations under the Public Use Clause.
Overruling Kelo would be consistent with the Supreme Court’s precedent on criteria for reversing previous decisions and would help resolve the confusion engendered by the ruling’s vague criteria for determining what qualifies as a pretextual taking. The Cato Institute and Professor Ilya Somin filed an amici brief asking the Supreme Court to grant the petition and overturn Kelo. However, even if the Court does not wish to reverse Kelo, it should still grant the petition to clarify the proper standard for pretextual takings.
