Those California Raisins Again, But It’s Still Not Quite the End

We recently made a record of our conviction that the government position in the Horne case is absurd, and that using any reasonable mode of legal analysis it ought to get tossed out of court ( because what is before the court is a case of physical seizure of private property (tons of raisins which the government claims a right to seize without compensation) and as such a categorical compensable taking. The owners who are defendants in a suit brought by the government, defend on the grounds that the law in question should be declared illegal as a violation of the Fifth Amendment.

We said we would await the event, i.e., the Supreme Court’s decision and see what’s what instead of speculating by reading tea leaves in the wake of the oral argument. We are sticking to our decision. But others see it differently and think a bit of speculation is warranted given the unusual history of this case (which is now before the Supreme Court for the second time). Our friend and fellow blogger Robert Thomas at has just posted a very good, lengthy analysis of what things look like to him on this eve of the opinion’s release.* A good job that, and we recommend it highly.

So while we stick to our guns and choose to continue waiting as time creeps by and the end of the court’s 2014 term is nigh, we have developed some concerns. The cases that are held by the court until the very end of the term are usually that most difficult ones, on which a court consensus is difficult to obtain. But how can that be the case in the Horne case, a categorical, classic physical taking case?

As Mr. Roberts points out in his analysis, the government is not even defending the lower court’s absurd ruling (that personal property is not protected by the Takings Clause), and has suggested instead that there is no taking because the Hornes are not required to be in the raisin business, and can do something else. If this sounds idiotic to you — though some courts have actually said it — it is indeed absurd on its face. Can you imagine someone arguing in an analogous case that, say, a newspaper is not entitled to First Amendment protection because nobody forces it to be in the newspaper business so maybe it should make wheelbarrows instead.

Anyway, we resist the temptation to get into the “merits” of the government’s idiotic arguments, and will stick it out to the end when the Horne opinion comes down. Still, the fact that it’s taking their Lordships all that time, and they are taking it down to the wire, does not bode well. So we’ll just have to stick it out because, for the record, we are a member of the pessimist tribe who believe that blessed are the pessimists for they shall not be disappointed.

So stand by. It won’t be long now.



*     If you are not a Supreme Court junkie, be advised that opinions in cases argued during the court’s term (October through June) are filed by the end of June when the court takes its summer recess. So being as today is June 13th, the end is near and all opinions in argued cases (which include Horne) are about to be sprung on us any day.