Bench Memos

Would Trump Be Willing to Appoint an Anti-Kelo Justice?

At last night’s GOP debate, Donald Trump dissembled (again) on eminent domain. When challenged on his support for the use of eminent domain for economic development, Trump dodged the issue by claiming eminent domain is necessary for roads, bridges and other infrastructure. This is not the issue. In Kelo v. New London, the Supreme Court held that taking private property for prospective economic development constituted a “public use,” and Trump himself has sought to use eminent domain for such purposes, infamously attempting to take an old lady’s home in order to build a limosine parking lot in Atlantic City. Trump repeatedly says eminent domain is not just necessary for infrastructure, but for private businesses as well. (After all, it’s often easier for well-connected developers like Trump to buy politicians than to buy property from willing sellers.)

After the debate, TWS’ John McCormack asked Trump whether he would be willing to appoint an anti-Kelo justice to the Supreme Court. Trump’s answer was not reassuring:

In the spin room after the debate, I asked Trump what he would do as president if he knew that a judge thought his expansive view of eminent domain was unconstitutional. Would Trump be willing to appoint such a judge to the Supreme Court?

“You wouldn’t have a bridge, you wouldn’t have a road, you wouldn’t have a highway without eminent domain,” Trump replied, not answering the question.

But what if a judge disagreed with Trump’s view that eminent domain may be used to build factories and casinos?

“You take a small piece of property in a town that’s in big trouble, and you do it with eminent domain and you build a 7,000-person factory where you’re going to produce jobs. You’re going to have to make a decision,” he replied.

Trump then moved down the press line after ducking the question a second time

Trump didn’t answer, but it’s clear he believes Kelo was not only correctly decided, but good policy as well. (For the record, I’m a dissenter on whether Kelo was constitutionally correct (12), though I find the use of eminent domain for economic development abhorrent and anti-environmental to boot.) 

The significance of McCormack’s question is that most conservative jurists believe Kelo was wrongly decided. Justices Thomas and Scalia both dissented in Kelo, and most originalists think they were correct. (I’m an outlier on that issue, and there’s no risk of Trump nominating me to any court.) So if Trump is not willing to appoint an anti-Kelo justice, it’s fair to wonder whether he’d appoint conservative justices at all. 


Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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