Eminent Domain

I'm a little late on this, but I spotted it in my bookmarks (also known as my "To Blog About" file). The PropertyProf Blog has a post by Prof. Ben Barros concerning his new paper. He takes a look at modern eminent domain cases before the Supreme Court. The most interesting part is that Prof. Barros has memos that Justice Powell wrote to Justice O'Connor about the Hawaii Housing Authority v Midkiff case. Justice Powell was concerned about the broad language that Justice O'Connor had in her opinion. He offered some ideas to her to narrow the opinion a little (very little, actually). Here's Prof. Barros...

Justice Powell's proposed language was included in Justice O'Connor's opinion of the Court (467 U.S. at 243-44) but is completely overwhelmed by the broad language in the rest of the opinion. The memo is striking in part because Justice Powell seemed cognizant of the risk presented by the broad language of the opinion, but proposed changes that were remarkably ineffective in mitigating this risk.

O'Connor dissented in Kelo rather forcefully. It seemed odd, considering that she wrote such a broad majority opinion in Midkiff that went the other way.

I think that this was an incident of O'Connor shifting her opinion based on the circumstances. Broad use of the police power was fine with her in the situation of Midkiff (where property on the Hawaiian islands was in the hands of a small number of owners, inflating land prices and other bad stuff), but it was not fine with her in the Kelo facts. It is also possible that she just changed her mind over the course of 22 years. Stranger things have happened.