Supreme Court 5 to 4 for Eminent Domain

The Supreme Court of the United States in the case of Kelo et al. v. City Of New London et al. decided 5 to 4 in favor of the use of eminent domain. The decision consists of four documents. 1) The majority opinion of the Court, which was written by Justice Stevens with the concurrence of Justices Kennedy, Souter, Ginsburg, and Breyer; 2) A concurring opinion by Justice Kennedy; 3) a dissenting opinion, which was written by Justice O'Connor with the concurrence of justices Rehnquist, Scalia and Thomas; 4) Justice Thomas filed a dissenting opinion.

The Stevens opinion is based on precedent, which emphasizes states and local governments' rights. The Court does not wish to second-guess these governing bodies. The Stevens opinion does not mention in other cases that the Court has limited states rights in flagrant cases, such as the treatment of African Americans. This decision taken in its extreme would permit the Government to seize the assets of a major corporation and transfer them to a different set of owners, providing the Government believed that the second set of owners would make better use of the assets than the original owners.

Because this was a 5 to 4 decision, the opinion of Justice Kennedy, who was the swing vote, is the most important. It is also the shortest. Justice Kennedy stated:

"The determination that a rational-basis standard of review is appropriate does not, however, alter the fact that transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause."

"A court applying rational-basis review under the Public Use Clause should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits, just as a court applying rational-basis review under the Equal Protection Clause must strike down a government classification that is clearly intended to injure a particular class of private parties, with only incidental or pretextual public justifications."

"A court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has merit, though with the presumption that the government's actions were reasonable and intended to serve a public purpose."

The O'Connor opinion is the most eloquent. It ends:

"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more."

The Thomas opinion demonstrates the opinion of the majority was not that of the framers of the constitution.

There was no significant discussion on the correct method to determine fair value of a property.