Here are a few thoughts posted by some law professors that actually filed briefs in the case:
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As to Kelo, I think the case sends just about the right message. The Court is not prepared to adopt a per se rule against takings for economic development. But the amber light is flashing. Stevens and Kennedy seem to say that careful planning and lots of community input are important in sustaining the use of eminent domain for economic development.
Another thought on Kelo. The case proves again how important the facts can be in selecting decisions to go to the Supreme Court. Kelo may have been a clean case, in the sense that there was no argument based on blight, just economic development. But it was far from being the worst example of eminent domain abuse. What the IJ needed was a case in which it looked like some politically unaccountable development authority had sold out to a private developer or big box store. I think a case with such facts, in today's political environment, would have flipped the result.
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I was a bit surprised by the closeness of the vote, and even more so by the fact that all four dissenting justices would not only invalidate the condemnations in the present case but also categorically forbid all "economic development takings." In doing so, Justice O'Connor - author of the principal dissent - pointedly condemned some of the more expansive language on the scope of condemnation power used in the Court's previous opinions - especially Midkiff, which he herself authored. It's not often that a Supreme Court justice repudiates some of her own work!
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Given that Prof. Merrill and I wrote amicus briefs supporting opposing sides in the case, it is significant that we both agree that Justice Kennedy's concurrence raises the bar the government has to meet to show that a condemnation serves a public use. At the very least, it is no longer the case that a taking serves a public use so long as it is "rationally related to a conceivable public purpose" - the ultra-deferential language often cited from the 1984 Midkiff case.
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Now, my view. There's a simple way to make sure that ED is used properly. The entity condemning the land has to pay what the property WILL BE worth, not what it was worth before condemenation. That removes any motivation of unearned profits, it tests the will and motive of the condemening entity, and it fairly compensates the party whose land is taken.
In fact, that was one point made in the lower courts, and discussed in the oral arguments at the Supreme Court. But it was not the question being decided.
JAC
