The negative public reaction to the United States Supreme Court’s decision in Kelo v.

New London,1 in which a five-Member majority refused to second-guess the motives

and methods of a redevelopment project for an economically distressed New England

city, over the protests of landowners who refused buy-outs and fought the assertion

that their property was then targeted for a “public use” taking, was as unexpected as

it was widespread. After all, this was the third time in a half-century that the Justices

had deferred to officials in the other branches of government who, in their supposed

wisdom, had decided to employ the sovereign power of eminent domain in order to

achieve highly defensible public policy goals. In 1954, a unanimous Court joined in

Justice William O. Douglas’s opinion in Berman v. Parker,2 allowing the District of

Columbia to use eminent domain as an urban renewal tool, over the objections of a

department store owner who wanted to stay in business instead of receiving payment

for the condemned property’s fair market value. Three decades later, in Hawaii

Housing Authority v. Midkiff,3 Justice Sandra Day O’Connor, writing for another

unanimous Court, refused to overturn the Hawaii Legislature’s decision to attack

“land oligopoly”4 by arranging for the “taking” of landlords’ property interests, which

were in turn transferred to tenants upon payment of compensation. Neither of those

earlier decisions, involving situations that were arguably as egregious and as far

from the text of the Fifth Amendment’s Takings Clause (“nor shall private property

be taken for public use, without just compensation”5) as was the factual context in

Kelo, resulted in public and political reactions that were in any way comparable in

breadth and intensity to the furor spawned by the decision in New London’s favor

that the Court announced on June 23, 2005.