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Invitation to Defy: Kelo v. New London and Legislative Responses to the Supreme Court Open Access

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The U.S. Supreme Court is often thought of as the final arbiter in the policymaking process, either affirming or rejecting the constitutionality of federal, state, or local laws. In some instances, however, the Court can also be an early-stage actor, providing criteria or guidelines in its decisions for other policymakers to follow when they draft legislation or administrative rules. Although these permissive rulings give other political actors a degree of leeway, there is usually a presumption, based in theories of Court compliance and legitimacy, that they will act in spirit of the Court’s decision and support the Court’s legal reasoning. The case of Kelo v. City of New London (2005) and the subsequent state and federal legislative responses to it serve as a counterexample to this expectation. After the decision, Court-curbing behavior occurred by both federal and state legislators, and members of the public and government officials expressed widespread disagreement with the ruling and with the Court’s rationale for it. Using Kelo as a lens, this project explores why federal and state legislators voluntarily enact policy changes in opposition to the Court. Instead of being the end of the policymaking process, an unpopular Court ruling can create an opportunity for policy change to begin among legislative actors, particularly if they are ideologically opposed to the Court or the direction of its decision.

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