Judge Sonia Sotomayor was asked for her opinion regarding Kelo v. City of New London during her confirmation hearing. Sen. Herb Kohl questioned her about the controversial Supreme Court 2005 ruling that a taking for economic development satisfied the “public use” requirement of the Fifth Amendment even if the property would be sold or leased to private entities.

Judge Sotomayor was asked, “What is your opinion of the Kelo decision, Judge Sotomayor? What is an appropriate, quote, “public use” for condemning private property? She responded:

Kelo is now a precedent of the court. I must follow it. I am bound by a circuit — a Supreme Court decision, as a 2nd Circuit judge. As a Supreme Court judge, I must give it the deference that the doctrine of stare decisis would suggest.

The question of the reach of Kelo has to be examined in the context of each situation. And the court did in Kelo note that there was a role for the courts to play in ensuring that takings by a state did in fact intend to serve the public — a public purpose and public use.

I understand the concern that many citizens have expressed about whether Kelo did or did not honor the importance of property rights. But the question in Kelo was a complicated one about what constituted public use, and there the court held that a taking to develop an economically blighted area was appropriate.