The Supreme Court’s outcome (of which Justices O'Connor, joined by Chief Justice Rehnquist and Justices Scalia and Thomas all dissented), outraged many Americans, finding it to be an abuse of governmental power. Property owners stated the Supreme Court violated the Fifth Amendment's takings clause. "The House of Representatives condemned the Supreme Court's decision in the form of H. Res. 340, which expresses grave disapproval of the Kelo decision. That resolution passed the House of Representatives by a vote of 365 to 33." (House Hearing, 109 Congress, Sep 2005). The courts ruling “triggered an unprecedented bipartisan backlash” (Institute for Justice, 2020), resulting in 47 states altering their eminent domain laws. An Executive Order entitled, Protecting the Property Rights of the American People, was issued by the White House in June 2006. “It is the policy of the United States to protect the rights of Americans to their private property, including but not limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property.” (White House, 2006)
Within one year from the Supreme Courts Ruling, 12 states completely prohibit eminent domain at all. As of today, “Twenty-five states changed their definitions of “blight,” requiring a closer connection between the taking and the protection of public health or safety, Eleven states gave prior owners a right of first refusal to repurchase property that has not been used for the purpose for which it was condemned or that is later sold by the condemner. Nine states changed the burden of proof in eminent domain cases, either by requiring the government to prove public use or by removing deference from the government’s assertions. And two states prohibited transferring condemned property to private parties for any reason, at least for ten years.” (Yale Law Journal, 2015) "Even Justice John Paul Stevens, who wrote the Kelo decision for the five-Justice majority has said publicly he has concerns about the results of that decision, if not the legal reasoning behind it." (House Hearing, 109 Congress,Sep 2005). If anything positive has become of the ruling, states have filled the void of the federal government protection and have enacted policies and laws to restrict or completely abolish eminent domain.
In 2021 a new case involving eminent domain was heard by the Supreme Court, Eychaner v. Chicago, by where the court acknowledged the poorly made ruling in 2005.
"This petition provides us the opportunity to correct the mistake the Court made in Kelo. There, the Court found the Fifth Amendment’s “public use” requirement satisfied when a city transferred land from one private owner to another in the name of economic development. That decision was wrong the day it was decided.
And it remains wrong today. “Public use” means something more than any conceivable “public purpose.” (Eychaner v. Chicago)
What future protections will be available for the taking of private lands for another's private use or public benefit? Over the years Justices Thomas, Gorsuch, Kavanaugh, and Alito have all vocalized their disagreement with the previous judgments on Kelo v New London. Is it possible the supreme court will reverse its decision in Kelo v New London? What would need to occur? States can only take so much action on their own. Doesn’t everyone deserve the right to be free from the threat of having their property rights stripped away for public use?
