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Profiles in Cowardice: Conservatives, Eminent Domain and Civil Rights in the Mount Holly Case

October 29, 2013

In December, the Supreme Court is scheduled to hear an important case out of Mount Holly, New Jersey, that involves Fair Housing Act (FHA) claims in the context of an effort by Mount Holly Township to use eminent domain to redevelop its only predominately minority community—and in the process, displace and raze the homes of its residents. As such, the case raises an important test of the whether conservatives hate eminent domain more than they detest civil rights statutes like the FHA, that protect minority homeowners from unjustified disparate impact. The answer apparently is the latter.

As everyone knows, the property rights movement has led a crusade against eminent domain in the courts over the past decade, highlighted by the case of Kelo v. New London.  While they lost Kelo, property rights groups such as Institute for Justice and Pacific Legal Foundation (PLF) have used public sentiment against the Kelo ruling to fuel ballot initiatives and legislation that have passed in whole or in part in 42 states. A critical talking point for leading groups in this crusade has been the impact that eminent domain can have on low-income and minority communities. This concern has activated some important groups on the Left.  For example, the NAACP, the Southern Christian Leadership Conference, and other big names of the civil rights community filed briefs for the plaintiff in Kelo alongside the property rights groups.

It would seem, then, that something we could all agree on is that eminent domain should not be used as a tool for racial discrimination. That is precisely what is being alleged by the homeowners in the Mount Holly case, whose homes are slated to be demolished to make way for a planned community of significantly more expensive housing units with a tony-sounding name, “The Villages at Parker’s Mill.” They are seeking a court hearing on their claims under the FHA that the township is employing eminent domain in a way that unjustly disadvantages minority homeowners and residents. (See Constitutional Accountability Center's brief.) 

One would expect that the groups on the right that have been howling so loudly against the abuses of eminent domain would line up to support this claim. Sadly, the opposite has happened. Many of the organizations that supported property owner Susette Kelo in 2005—such as PLF, Cato, and the Reason Foundation—have effectively sided with Mount Holly Township and against Mount Holly’s property owners.  For example, PLF’s brief focuses entirely on arguing against the use of the FHA to bring claims challenging policies like Mount Holly’s. While PLF purports to be supporting no party, it’s impossible to read their brief as anything but a full-throated argument for the Township.

The brief filed by Institute for Justice, which represented Ms. Kelo and runs the anti-eminent domain Castle Coalition, is different but almost equally disappointing. The brief provides a compelling set of arguments about how eminent domain can harm minority and low-income property owners, but then proceeds to argue only that the case shows why Kelo should be overruled (an issue clearly not before the Court), effectively leaving the property owners here without any support from the Right for the one existing tool in federal law that could meaningfully cabin eminent domain abuse.

Even those of us, including myself and Constitutional Accountability Center’s predecessor organization, Community Rights Counsel, who have long supported the reasonable use of eminent domain for redevelopment purposes, can see the potential for eminent domain abuse in the gentrification context.  For stalwart opponents of eminent domain, the decision ought to have been even simpler. This case was an important test of whether the impassioned conservative cries against the use of eminent domain against low-income and minority communities were a strategic show of crocodile tears or a genuine concern for preventing abuses in this context. We now know the answer: the Castle Coalition apparently is really about protecting the castles of the rich, not the homes of working-class minorities who are frequently the victims of genuine eminent domain abuse.

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