As our friends at the Institute for Justice will tell you, today is the third anniversary of Kelo v. New London, the property rights case that made my colleague Bob Levy’s list of the “Dirty Dozen” worst cases in modern Supreme Court history. This was the case where the Fifth Amendment’s “public use” requirement was found to impose essentially no restriction on the government’s eminent domain power. In some senses this was a lost battle leading to great progress in the war to preserve property rights, with legislatures in numerous states enacting anti‐Kelo legislation in the wake of concerted grassroots activism against the decision.
This morning the Supreme Court found a curious way of winking at Kelo Day. As I was scrolling down the orders list — a many‐paged list of administrative actions, mostly cert denials — I happened upon the following notation:
07–1247 GOLDSTEIN, DANIEL, ET AL. V. PATAKI, FORMER GOV. OF NY
The petition for a writ of certiorari is denied. Justice Alito would grant the petition for a writ of certiorari.
Now, it’s exceedingly rare for individual justices to have the clerk record how they voted on a cert petition, but here Justice Alito did just that, and in a case that rang a bell in my mind I couldn’t place. Then I realized that Goldstein v. Pataki was the appeal by a group of home‐ and business‐owners who are likely to lose their property to a development that is to provide a new home to the the New Jersey Nets plus 16 high‐rise office and apartment towers and a hotel. Thus, not only is Justice Alito as friendly a vote on this issue as was his predecessor Justice O’Connor (who wrote an impassioned Kelo dissent) but he is apparently an emphatic one. See a bit more here. This is not necessarily a surprise — and it still leaves us one vote short — but, again, the notation on the order list is a neon light to Supreme Court watchers.