Nothing 'Errant' About it: The Berman and Midkiff Conference Notes and How the Supreme Court Got to Kelo With its Eyes Wide Open

This Essay draws on the Supreme Court's conference notes in Berman v. Parker and Hawaii Housing Authority v. Midkiff to contest Justice O'Connor's assertion in her Kelo v. City of New London dissent that there is a sense in which this troubling result [in Kelo] follows from errant language in Berman and Midkiff. The conference notes in those cases in fact reveal that the Court used broad language intentionally (in Berman) and was aware of the risk of broad language (in Midkiff). Further, the broad language that O'Connor found objectionable was essential to the Court's holdings in Berman and Midkiff, and the cases could not have been decided on narrower grounds. Justice O'Connor's suggestion that the broad language in Berman and Midkiff was the result of a judicial slip of the pen therefore is incorrect. The Court's decisions in Berman and Midkiff consciously avoided the hard questions presented by the issue of public use and deferred those questions to the legislature. The intentional abdication of the judicial role in reviewing issues of public use reflected in the Berman and Midkiff conference notes reinforce the position that Kelo is entirely consistent with the Supreme Court's public use precedents. A more compelling dissent by Justice O'Connor therefore would have argued not that Berman and Midkiff contained loose language, but that with the benefit of hindsight Berman and Midkiff's deference to the legislature was a mistake that should be corrected by overruling the prior cases.