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Wednesday, February 23, 2005

Kelo - an elementary post

Publius' post earlier on the Kelo case got me to thinking about something very simple. If Berman and Midkiff control the outcome of the Kelo, then why grant cert at all. As everyone knows, the Court operates under the Rule of Four: it takes four votes in conference to grant certiorari normally. Only three members of the Court remain from the days of Midkiff, and that opinion was unanimous, with Justice O'Connor writing for the court. What are we to think about who voted to grant cert? Would they take a case like Kelo simply to reaffirm the broad eminent domain power of the state in light of the Michigan Supreme Court's recent repudiation of Poletown. I think more likely, as in the state courts, judicial attitudes overall towards the ever-increasing use of eminent domain might have shifted somewhat among the new justices.

I would venture to guess that almost certainly Justice Thomas voted to grant certiorari (almost definitely to at least limit the Midkiff holding - I don't know what others think, but I see Thomas as the only current member of the court with libertarian tendencies, outside of Justice Kennedy with regards to the First Amendment) along with Justice Scalia, who has time and again proven his commitment to private property rights (Nollan, and Lucas)). After that, I am at somewhat of a loss to guess the other votes. One would normally think Rehnquist would have voted with the other conservatives, but here, I'm not so sure. I have a feeling that Justice Kennedy was probably one of the votes for certiorari but might be unclear about his position. O'Connor, if Midkiff does control, will almost certainly not repudiate her earlier position (though one would think as the daughter of a rancher, she ought to be on the other side of this question). Where are Stevens (majority in Midkiff), Souter, Ginsburg and Breyer? Simple vote counting leaves me at a loss to say how the Kelo's can win this case. Having said that, I feel like there is a reason the Supremes took this case: perhaps a narrowing of Midkiff is in order.

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