We don't read the New York Times all that much these days, but we couldn't resist commenting on the recent op-ed authored by a former federal government lawyer that takes issue with recent decisions by the U.S. Supreme Court, "The Supreme Court Has Gone Off the Rails" (Oct. 4, 2021).
On one hand, the op-ed might not be anything new because the NYT doesn't try hard to hide where it stands on the Supreme Court (see here and here, for example), and yet another opinion piece questioning the Court's legitimacy might be just piling on. But this one is authored by a fellow who was "was a U.S. attorney and principal deputy solicitor general in the Reagan administration and deputy attorney general in the George H.W. Bush administration" as well as a law clerk for William Rehnquist. Which means, we suppose, that he's not yet another "usual suspect," but is going against type so maybe his argument is more worthy of attention.
As we read it, the gist of his argument is that the Supreme Court majority has abandoned the notion of judicial restraint and that judges should not be "activists," and has instead become the very opposite of the thing that what he calls the "Reagan revolution in the law" stood for. The piece provides several examples where the current Justices have become, in the author's view, judicial activists.
Among those examples the author cites is a takings case, Cedar Point Nursery v. Hassid, in which the 6-3 majority concluded that all physical invasions -- not only permanent occupations -- presumptively require compensation under the Fifth and Fourteenth Amendments. (For our more detailed thoughts on that case, start here; and before we go further, I'll disclose for those of you who don't already know that I am now a lawyer in the firm that represented the property owners in Cedar Point, so yes, I have a distinct view on the case and what it means that readers should take into account.)
The author writes:
Another decision that received less attention but was still shocking involved the Takings Clause of the Fifth Amendment, which says private property may not be taken for public use without just compensation. The decision struck down a California agriculture labor regulation that gave union organizers the right to come to specific areas of a grower’s property at limited times to speak with workers.
Whatever Cedar Point is, we would not characterize it as "shocking." After all, can one say that any decision about regulatory takings is shocking in light of the mostly-muddled doctrine? To say something is "shocking" implies that there's some level of predictability, clarity, and uniformity in the doctrine, doesn't it?
But that's not the buried lede we mentioned in the title of this post.
The author also notes:
As Justice Stephen Breyer’s dissent made clear, rather than apply the court’s longstanding regulatory takings test — which balances several factors and would clearly have indicated that the law did not violate the Takings Clause — the court simply applied a different test previously reserved for a very narrow set of obvious takings. In doing so it raised major new questions about the constitutionality of some government business regulation and oversight that require access to private property.
The op-ed asserts that application of the Penn Central balancing test "would clearly have indicated" that the regulation did not work a taking. Inherent in that assertion are two assumptions.
First, that the result here under Penn Central would have clearly been "no taking." That's not obvious, at least in theory. We're not at all certain that should naturally be the result had a Penn Central claim been raised (the nursery owners pointedly did not assert a Penn Central taking, and limited their takings claim to a categorical/per se taking):
- The character of the government action here looks a lot like regulating for free something that the government usually takes by eminent domain and pays for (temporary construction easements, anyone?).
- Property owners, even those in the agricultural business almost certainly have reasonable or distinct expectations of keeping third parties out.
- And a reasonable jury could conclude that being opened to unannounced early-morning entries by disruptive third parties could result in a significant loss of use or value of the property.
No, an application of Penn Central should not automatically make one assume that the result would have been "clearly" no take. At least in theory.
But we know that isn't the reality of Penn Central. And that leads to what we see as the author's second assumption (here's your buried lede). The assertion that the outcome of applying Penn Central here is "clear" only if one also assumes that Penn Central is a paper tiger. The op-ed makes a distinction between Cedar Point (which "clearly" was not a taking), and cases in which takings are "obvious." It seems plain to us that the author assumes that the Court's "longstanding regulatory takings test" means that the owner loses in all but a "narrow" set of cases. In other words, for Cedar Point to be viewed as a case where the Court went "off the rails," one must assume that the rails are stacked against property owners under the default regulatory takings test. To us, that describes Penn Central to a tee (the reality, not the theory of Penn Central).
Thus, we see Cedar Point not as a sign that the Court has gone activist on us, but instead as indicating that it is back on track and that the judiciary is not merely a rubber stamp for legislatures, at least in property rights. That Justice Holmes' formulation nearly 100 years ago that if a regulation "goes too far" it will be recognized as a taking reinforced an even more longstanding principle than Penn Central's three-factor test that in theory is supposed to confirm the "too far" principle, but in reality does not. A principle that Justice Holmes did not invent, but has a long pedigree in the common law. For example, as Chancellor Kent noted in Gardiner v. Village of Newbergh, the right to compensation when property is taken by expropriation or regulation, "is admitted by the soundest authorities, and is adopted by all temperate and civilized governments, from a deep and universal sense of its justice."
We see Cedar Point as part of that tradition, which "intuitively" (as the Court described it) saw California's invitation to third parties to come onto the nursery's land and proselytize as intruding too far into the owner's fundamental right to say "keep out." That hardly seems like being activist judges and going "off the rails." Indeed, we think that one of the reasons that the majority seems comfortable in property cases is that property is one of those areas in which lawyers and judges are trained (as opposed to the more "political" and policy issues that are often brought to the Court).
But maybe there's another part of the op-ed that gives away the author's viewpoint. It notes that the reason for his objections is that the Court is allowing individuals to raise their claims "in a way that can stop government in its tracks." Forgive us, but we thought that "stopping government in its tracks" was the main point of the constitutional exercise. That one of the reasons we have a constitution is to remind the government who's the boss (us), and that the reason that governments exist is to secure our rights. And one of those rights is Just Compensation.
Or as Chancellor Kent put it:
The last of those jurists insists, that private property cannot be taken, on any terms, without consent of the owner, *for purposes of public ornament or pleasure; and he mentions an instance in which the Roman senate refused to allow the praetors to carry an aqueduct through the farm of an individual against his consent, when intended merely for ornament. The sense and practice of the English government are equally explicit on this point. Private property cannot be violated in any case, or by any set of men, or for any public purpose, without the interposition of the legislature. And how does the legislature interpose and compel? "Not," says Blackstone, (Com. vol. 1. p. 139.) "by absolutely stripping the subject of his property, in an arbitrary manner, but by giving him a full indemnification and equivalent for the injury thereby sustained.
Could not have said it better ourselves.
