Kelo - an elementary post
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.