Supreme Decisions: As Usual, the States Won Some and Lost Some during the Recent Supreme Court Session

By Savage, David G. | State Legislatures, September 2005 | Go to article overview
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Supreme Decisions: As Usual, the States Won Some and Lost Some during the Recent Supreme Court Session

Savage, David G., State Legislatures

The Supreme Court ended its term during the summer by upholding the states' broad power over property and taxing, but these wins were offset by the loss of its strongest voice for states' rights with the retirement of Justice Sandra Day O'Connor.

If nothing else, the just-completed term showed again how the vote of a single justice can prove crucial.


By a 5-4 vote, the court ruled that cities and states can condemn property to make way for economic development, "reflecting our long-standing policy of deference to legislative judgments in this field," said Justice John Paul Stevens in Kelo v. City or New London. The decision is likely to be remembered best for the plight of the plaintiffs and the words of the dissenters, but it affirmed the traditional power of cities and states to regulate property.

Susette Kelo, a nurse, had sued to block the city from bulldozing her pink Victorian home whose porch offered a grand view of Long Island Sound. She and several of her neighbors were the last hold-outs in the Fort Trumbull area of New London. The city itself had fallen on hard times after its last major employer, U.S. Naval Undersea Warfare Center, closed in 1996. Even before that, the state of Connecticut had declared New London a "distressed municipality" because of decades of economic decline and its high unemployment rate.

Hope was revived in 1998, however, when Pfizer Inc., the pharmaceutical giant, announced plans to locate a research center there. The city's redevelopment agency set out to take advantage of Pfizer's arrival by buying up the land near the waterfront. The 90 acres of cleared land were slated to have an office complex, a hotel, a marina and a "riverwalk" with restaurants and shops. The development promised to bring jobs and new tax revenue to a city that was in desperate need of both.

All that stood in the way were Kelo and her neighbors. They refused to sell, even though city officials were prepared to pay them compensation that amounted to more than twice the market value of their homes. They contended the forced seizure of their homes violated the Fifth Amendment to the Constitution, which says "private property (shall not) be taken for public use, without just compensation." Taking private property for private development is not a "public use," they insisted.

The Supreme Court, and indeed many courts, dealt regularly and often with the question of when cities or states must pay "just compensation" to property owners who had been denied permission to build on their land. Rarely, however, had the high court dealt with the phrase "for public use."

In the nation's early days, it was clear the government could take land for roads, forts and canals. In the 19th century, land was condemned to make way for the railroads. In the late 19th century, the courts also upheld state laws that gave manufacturers the power to flood land upstream from their factories so they could store water to drive their mills.

In the 20th century, the high court all but ignored complaints from store owners and others who asserted their property rights. In a short, unanimous opinion in 1954, the justices ruled that local officials may condemn and bulldoze whole blocks of a city's "blighted" neighborhoods as part of an urban renewal project. The store owner in that case, Berman v. Parker, had complained that because his store was not "blighted," he should have the right to keep it. The justices disagreed and said the power of "eminent domain" could be used to further the greater good of the city and its residents.


The State and Local Legal Center filed a friend-of-the-court brief in the Kelo case on behalf of NCSL and other groups reminding the justices of this history and urging that they not reverse course. "Eminent domain is often indispensable for revitalizing local economies, creating much-needed jobs, and generating revenue that enables cities to provide essential services," said Richard Ruda, chief counsel for the center.

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Supreme Decisions: As Usual, the States Won Some and Lost Some during the Recent Supreme Court Session


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