Memo to Justice Breyer: A Little Less Symbolism and a Little More Justice, If You Please

Justice Stephen G. Breyer is upset. And who can blame him? His Lordship is bent out of shape because of the recent decision to close the main entrance to the U.S. Supreme Court building, and to require visitors to enter through two secure entrances located at the bottom of and on the sides of those grand marble stairs that lead to the main entrance to the court. According to the New York Times, Justice Breyer’s concern focuses on the inaccessibility of the “… Supreme Court’s main entrance as a symbol of dignified openness and meaningful access to equal justice under the law.” Adam Liptak, Step Away From the Doors, N.Y. Times, May 4, 2010, at p. A14. 

We find it hard to argue with that, especially the part about that “meaningful access to equal justice under the law,” but the problem is that in the case of American property owners, meaningful access to equal justice under law is not a matter of doors and security arrangements. It’s that by the court’s formulation of fiendishly complex and ultimately deceptive procedures, these folks have been denied access to any kind of justice as far as their federal constitutional rights are concerned.

The court tells us that to ripen their federal claim to just compensation, property owners must first sue in state court, but when they do that, they are told that the state court decision is preclusive and they can never get their claim under the federal constitution heard in federal court. As four concurring Justices put it in the Hotel San Remo case, under this recently minted ripeness regime American property owners cannot get their federal constitutional claims heard on the merits in any court – whether state or federal. For our discussion of this problem go to our post of April 11th, at  

While we agree with Justice Breyer that the symbolism implicit in the closure of the Court’s magnificent main entrance is unfortunate, and represents yet another (though perhaps unavoidable) act of capitulation to terrorists, we are less concerned with the symbolic aspects of it, and more concerned with litigational realities.

As readers of this blog know, the equal justice problem in inverse condemnation law has to do with procedural barriers, not doors, bronze or otherwise. Your faithful servant would cheerfully – well, maybe not so cheerfully — enter the SCOTUS building through the basement, if that were what it takes to get some “equal justice” from their Lordships for our clients whose property is taken without compensation, but who are told that there is no court – neither state nor federal – that can hear their federal constitutional complaint on the merits, and that though trial by jury is their right as held in City of Monterey v. Del Monte Dunes, they can never get one. 

For the entire N.Y. Times story go to  

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