“What is it about takings that gets Justice Stevens going? Is he also making talks rehashing other constitutional issues that he didn’t get to rule on? We’re not being facetious here, we’re really asking. If you know of other examples, please ping us. “
So says our blogging colleague, Robert Thomas on www.inversecondemnation.com (post of October 16, 2012), and a good question it is. The last time Justice Stevens had a good substantive word to say about the property owners’ side of a controversy involving a taking, was when he joined the dissenters in Penn Central Transportation Co. v. City of New York in 1978. But not thereafter, with the exception of Del Monte Dunes where he voted with the majority, but without expressing any views, leaving his readers to wonder why he switched sides (our own speculation is that, like most of his colleagues, he was incensed by the crude, lengthy harassment of the plaintiff-property owner by the city, and he liked the majority’s plaintiff-friendly holding that under 42 U.S.C. Sec. 1983 a plaintiff is entitled to have a jury try the fact-bound issues of the case — a view deemed anathema by the “police power hawks” who seemingly never, ever see a taking case they like, and want to make sure that the aggrieved owners’ chances of winning, if they exist at all, are minimized. Nor are they willing to concede that British history is clear that juries were used to fix compensation in eminent domain (or, as they put it, “compulsory purchase”) cases until 1845, which means that juries should be used in eminent domain cases as a constitutional right under the Seventh Amendment. But they aren’t. So in our book, Justice Stevens gets a point for joining his colleagues in advancing this modest step toward the right to a trial by jury.
Of course, saying that property owners are entitled to a jury trial to resolve fact-bound issues in inverse condemnation cases brought under 42 U.S.C. Sec. 1983, and actually providing them with one, are two very different things. If you don’t think so, do read or re-read the part of Del Monte Dunes dealing with the right to trial by jury, and then show us a single federal case (apart from Del Monte Dunes itself) in which that right was actually afforded to a constitutionally aggrieved property owner claiming a taking. Interesting, eh?
Justice Stevens also wrote against the owners’ submissions in Kelo v. New London (direct condemnation), where he took pains to eliminate what was left of the “public use” limitation on the federal taking power, and subordinated a property owner’s constitutional rights to assertedly “thorough” but actually half-baked “planning” of a small-town redevelopment agency that, as it turned out, couldn’t find its own posterior in broad daylight with both hands. Though Justice Stevens has written about his Kelo handiwork in nonjudicial media, after the fact, he never took note of the incontestable fact that the municipal plans touted in his opinion as thorough and well-nigh conclusive, turned out to be not just a failure, but a total calamity — nothing was ever built on the 91-acre Kelo waterfront property, and instead, the taken 91-acres of land is now a trash-strewn vacant parcel that instead of generatig taxes (which was the raison d’etre of the redevelopment plan) has been consuming them — at least $100 million and counting. One would have thought that in light of that municipal-fiscal disaster, and of the preexisting rule that where the acts of a city are intended to inure to its own benefit, its adversaries are entitled to a heightened level of judicial review — at least our memory tells us that that’s what the court said in U.S. Trust v. New Jersey — but you better check us out on that one), Justice Stevens might have used polite language to say something like “oops” or perhaps even “sorry about that.” But as far as we can tell, he never so much as tipped his hat in the direction of the project’s total failure, as if case outcomes played no role in the judicial calculus, to say nothing about after-the-fact extra-judicial writings.
And in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (inverse condemnation) Justice Stevens likewise did what he could (including rewriting of the Question Presented) to reduce the historical property right of user to a nubbin. There he held that the government could deprive hundreds of small land owners seeking merely to put their land to reasonable use, for an indefinite period of time — in the Tahoe-Sierra case some 50 owners of such single-family lots (on which they intended but were not permitted to build retirement homes) died while the case wended its way through the federal courts, in the name of maintaining a “moratorium” that extended over a period of decades. While this was done in the name of “saving the lake,” the Los Angeles Times reported at the time that fat cats like Michael Milken and heirs to the Singer sewing machine fortune were building lakefront mansions without let or hindrance from the Agency.
Later, not content with winning his point in Kelo, if only 5 to 4, Justice Stevens — evidently taken aback by the outraged popular reaction to his handiwork — took to the soapbox, first before the Nevada Bar Association and in the pages of the Nevada Law Review, and later provided us with another piece of legal commentary in the form of a 2011 speech at the University of Alabama School of Law (available on the Supreme Court website), to reargue his Kelo position again. Which strikes us as a case of “the gentleman doeth protest too much.”
Now he’s at it again, this time telling the world in the pages of an upcoming isue of the Chicago-Kent Law Review, about what he would have done in the Stop the Beach case, had he not been recused by virtue of being a Florida beach owner. Here he argues that the issue of taking was moot because, as the majority found, the Florida Supreme Court’s holding did not effect a taking and the issue of judicial taking had not been raised below. But the majority also found that no judicial taking had occurred in the Beach case, thus inspiring Justice Scalia’s immortal line that to the extent this decision delineated in any way the contours of a judicial taking, it was like answering the age-old question of how much wood could a woodchuck chuck if a woodchuck could chuck wood. With all due respect to judicial gravitas, we like Justice Scalia’s formulation better.
So why has Justice Stevens been doing it? Like Robert Thomas, we have no idea because this judicial equivalent of an end-zone dance was unnecessary. But we have a hunch that Justice Stevens is one of those ideologically besotted types who cannot let go of the idea that it has somehow been divinely ordained for them to wage war — or, a jihad, if you will — on private property rights. Why that would be so, we don’t know. After all, property rights are explicitly protected by the Constitution, and Justice Stevens purports to be a great supporter of liberties enshrined in the Bill of Rights — at least “liberties” as viewed by the left-of-center segment of the American polity — and there is nothing so conducive to maintaining all liberties as secure, than legally protected property rights. That is why American judges have life tenure: to protect their “iron rice bowl” from competing politial forces. So if Stevens is going to go on in the law journals about what he coulda, shoulda and woulda done on the court, the least he might do for Americans is explain why he has been disregarding Justice Potter Stewart’s admonition in Lynch v. Household Finance that personal liberty and private property rights are interdependent and neither could have meaning without the other, and enlighten us as to what it is that in his view makes private property unworthy of a full meaure of constitutional protection, like what is freely afforded to other provisions of the Bill of Rights.