Justice O’Connor, Midkiff and Kelo: A Short Morality Play in Two Acts

UPDATE:  I've expanded the content of this post into an essay that is available here.

This summer, my research assistant Jackie Pfursich and I spent a great deal of time at the Library of Congress.  We were doing research in the files of past Supreme Court justices looking for material on the Court's major takings cases, especially the Justices' conference notes.  For those unfamiliar with the Court's inner workings, the Justices meet in conference to discuss and vote on cases.  Only the Justices (not clerks or anyone else) are present at the conference.  Many Justices take notes at the conference, and some of the Justices included their notes in their personal papers given to the Library of Congress or, in some cases, archives at other institutions.  The Justices' files also include memoranda circulated to the other members of the Court (often also called in the context "the conference") on cases.  Del Dickson's book The Supreme Court in Conference, 1940-1985 : The Private Discussions Behind Nearly 300 Supreme Court Decisions is an outstanding source for more detailed information about the conference and conference notes generally.

Conference notes have many limitations as sources for scholars.  They certainly are not anything close to stenographic notes of the Court's discussions.  They are handwritten, often shorthand and equally often cryptic.  Because they were typically written in pencil, and because some of the Justices weren't very compulsive about pencil sharpness, they can be hard to read.  They also can be misleading, and must be read with caution.

All of this said, the conference notes can provide valuable context and richness to our knowledge of Supreme Court cases.  The Court's written opinions are the only authoritative statements of its position on a particular case, but it can be helpful to know what the Justices were thinking about behind the scenes when deciding a case.  This additional information can be particularly valuable in murky areas of law like takings.  So, in this and subsequent posts, I will discuss some of the material that I've found in my research.  To the caveats noted above, I would add that my work on the conference notes on the takings cases is at an early stage.  If you want to quote or cite any of this discussion, e-mail me and I'll give you the most up-to-date version.

In light of the recent furor over Kelo v. New London, Justice O'Connor's opinion in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), seemed like a good place to start.  Midkiff was the Court's leading pre-Kelo statement on the meaning of "public use" in the eminent domain context.  The Court's thought-process in Midkiff is interesting because Justice O'Connor's opinion for a unanimous Court articulates a broad conception of public use that O'Connor later came to regret in Kelo.

Midkiff involved a challenge to a very unusual law enacted in response to a very unusual set of circumstances.  For several historical reasons, land ownership in Hawaii was unusually concentrated.  On Oahu, for example, 22 landowners owned 72.5% of the fee simple titles.  Many of these landowners were hesitant to sell parcels of their property because of potentially large federal tax liabilities.  The result was that most people leased, rather than owned, their homes.  The Hawaii Legislature therefore enacted the Land Reform Act of 1967, which set up a process for using eminent domain to take the fee simple ownership of a single-family home and transfer it to the tenant living in the home.

Midkiff therefore presented a very clear public use issue:  the State of Hawaii was using eminent domain to transfer single-family homes from one private party (the landlord) to another private party (the tenant).  In the opinion appealed to the Court, The Ninth Circuit had held that the Act did not constitute a valid public use, and instead was "a naked attempt on the part of the state of Hawaii to take the private property of A and transfer it to B solely for B's private use and benefit."

One preliminary issue discussed by the Court in conference was whether to abstain and let the state courts decide the issue of public use.  Interestingly, Justice O'Connor appears to be the only Justice to have advocated for abstention in the conference.  Justice Blackmun's notes of the conference have Justice O'Connor saying that she "liked abstention and let state courts develop the public purpose," a sentiment certainly at odds with her later position in Kelo.  (Justice Brennan's notes for Justice O'Connor simply state "Favor abstention, will reverse").

On the merits, the Justices seemed to be in agreement that the Act met the "public use" requirement and fell within the scope of the Court's prior precedents, especially Berman v. Parker, a 1954 blight-clearance case that articulated a broad conception of public use.  The Chief Justice referred to the "precedent in slum clearance cases," and the "great mkt control" exercised by the property owners in Midkiff.  Justice Brennan referred to "Berman et al" and Justice Blackmun noted that "On merits, [there has been] no case yet where we've held a taking was not for public use." 

Justice Rehnquist, a later dissenter in Kelo, observed that "can be done narrowly but this is open and shut case; at best very narrow review of what is public purpose" [Brennan notes] "can be done [illeg.] narrowly but case is not close; stay within Berman." [Blackmun notes] The idea that this was a narrow case was also raised by Justice Powell, who said that the case "has to be treated as unique situation it is -- its history etc." [Brennan notes] "a special case, but to be carefully written" [Blackmun notes].

Despite these comments that the Midkiff opinion could be written narrowly, Justice O'Connor's opinion of the Court contained very broad language about the scope of allowable public use as being "coterminous with the scope of a sovereign's police powers."  The opinion contained similar language about deference to the legislature, noting that "where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause," and that "Judicial deference is required because, in our system of government, legislatures are better able to assess what public purposes should be advanced by an exercise of the taking power."  Indeed, the breadth of the opinion caused Justice Blackmun's clerk to note in a memo "I am a bit surprised at the breadth of the opinion since SOC's comments at Conference indicated that she wanted a narrow opinion."  This remark that Justice O'Connor wanted a narrow opinion is not reflected in the conference notes.  It may be that she had made such a remark, but that the remark was not reflected in the notes, or that the clerk was attributing to Justice O'Connor the sentiments raised by Justices Powell and Rehnquist.

Justice O'Connor came to regret the broad language of Midkiff, noting in her Kelo dissent that "There is a sense in which this troubling result follows from errant language in Berman and Midkiff. .  . . [W]e said in Midkiff that '[t]he "public use" requirement is coterminous with the scope of a sovereign's police powers.'  This language was unnecessary to the specific holdings of those decisions."  I will address the rest of Justice O'Connor's dissent in a future post, but this particular statement rings very true.  The broad concepts articulated in Berman, and strongly reinforced in Midkiff, arguably mandated the result in Kelo.  Had Midkiff in fact been decided in a narrow fashion based on its unique facts (among other things, unlike most exercises of eminent domain, it did not displace the people in possession of the homes being taken), Kelo may have come out differently.  Or it may have come out as it did, but Justice O'Connor's dissent wouldn't have been weakened by the need to eat her own words.

Midkiff therefore contains a moral that the Justices and their clerks would do well to heed -- the full consequences of grand statements of principle are rarely clear when articulated.  They therefore should be used with great caution, because they might come back to bite you.

As an aside, the Midkiff files also include one exchange that might be of more interest to scholars of abortion politics than to takings scholars.  As the formal votes of the Justices were filtering in in the case, Justice Blackmun wrote a memo to Justice O'Connor, asking "if I may raise a point of personal privilege.  I shall be in Honolulu May 20-22.  Do you think the decision in [Midkiff] could be withheld until after the 22nd?  I run into enough flak as it is these days, and I think it would be better if I were out of the State by the time the decision comes down."  Justice O'Connor replied that "I will be more than happy to get you safely back on the Mainland before lowering the boom by announcement of this decision."

[UPDATE:  Two clarifications.  First, my colleague Michael Dimino raised a very good question about whether Midkiff in fact could have been decided on more narrow grounds.  I'm not so sure that it could have, and as Michael noted, any time the Justices start talking about a case being very narrow it is worth looking hard for the Constitutional principle they are about to break.  Second, to clarify the significance of the aside for those of you who don't follow the issue, Justice Blackmun got a lot of flak for Roe v. Wade.]

[Comments are open; as always, they require approval before they come up, so there might be some delay].

Ben Barros