Monthly Archives: June 2019

Are You For Real, Justice Kagan?

As predicted, the commentary on the Knick case is flowing like a flood-stage river. For example, Robert Thomas’ commentary in his blog alone is filling pages with analysis and commentary. Good stuff that. Check it out. We stand in awe of his prodigious exertions, but we wonder if Mr. Roberts is able to do what he has done, and still have time to accomplish other things we all must do in life to survive. More power to him.

But so far, we haven’t seen much said in defense of Justice Kagan’s over-the-top dissent. Why over the top? Apart from its “chicken little” the-sky-is-falling tone (or, the-sky-has-fallen, if you prefer) we are amazed that so little is being said about the content of her dissent. She has risen up like an angry giant in defense of — are you ready? — stare decisis. And what might be wrong with that? Nothing, actually, so long as one stays within the bounds of reason. But stare decisis must make sense. Your faithful servant is an old geezer, which is to say of the generation during which the sainted Earl Warren presided over the Supreme Court where he and his merry men wielded the powers of precedent-breaking and precedent-making with a mighty hand. Justice Kagan seems to have forgotten that during the Warren era precedents were being broken like so much kindling. We need only mention familiar landmark rulings like Brown, Miranda, Roe and all those others which were then Johnny-come-lately precedent breakers.

So if we reflect a bit on that past and look at the Kagan dissent in Knick, we come up with the proposition that if you’re up there and you decide to chop up some old precedents like so much kindling, you’re a hero, provided your deeds of precedential derring-do are on the liberal side of the legal ledger. But if, as in Knick, your intellectual/doctrinal precedent-chopping favors the conservatives, then you’re an icky-poo bad guy. Instead, says Justice Kagan,  you should go supplicate the legislature to change the law — even if that law is judge-made, works a bizarre constitutional injustice and violates the explicit constitutional rights of folks you disfavor. But no overruling Holy stare decisis and declaring the constitutionally offending legislation (or precedent) unconstitutional in order to bring some rationality into the lives of constitutionally aggrieved Americans. Sorry, your Honor, that isn’t our idea of good law or justice, or for that matter, what we were taught in law school.

What’s good for the goose should be likewise good for the gander, goes the old proverb, and Justice Kagan should reflect on its message.

Bottom line: the Williamson County rule denying American property owners access to federal courts (or at times any courts) to protect their federal constitutional property rights was raw injustice that stunk to high heaven. Good riddance to it. By defending it, Justice Kagan has not covered herself with glory. Quite the contrary.

FOLLOW UP. As we write this follow-up it is the beginning of Novemeber, and a few defenses of Justice Kagan’s over-the-top dissent have begun to appear. Mostly, they try to rise in defense of her worshipful treatment of precedent, not of any substantive defense of the fairness of the result of the case she would like to see. Small wonder. The pre-Knick result of the Williamson County/San Remo Hotel rule was absurd on its face, and it was a blot on the Supreme Court’s stature while it lasted.

In case our meaning is not at your fingertips, let us remind you what that result was. Under it the constitutionally aggrieved property owner, unlike any other Section 1983 plaintiff,  had to sue “first” — so the court said — in state court, and only after losing there would the plaintiff’s case be ripe for litigation in federal court. But if the owner followed that requirement, the state court decision would be deemed preclusive and — “ripe” or not — the  owner’s case invoking the protection of the US Constitution could never be invoked in any court. This is what Justice Kagan wants to inflict on the country? This is what her supporters still want? Stuff and nonsense!

Promises, promises . . .

NBC Chicago reports that plans for a large Foxconn electronics plant for which land was acquired by eminent domain in Wisconsin, is slow in getting started and it appears that the numbers of people to be employed there will be smaller than those promised at the time of the land’s acquisition by eminent domain.

Here are the details in the NBC story:

Hail to the Chief!

Most of the current writing about the Knick case has concentrated on the opinions’ contents — notably, the property owners’ victory embodied in the 5 to 4 majority opinion that finally got rid of the intellectual excrescence that was the now-overruled Williamson County case. Slice it anyway you like, but Williamson County’s bizarre ruling that American property owners, unlike any other species of constitutionally aggrieved Americans, are not allowed access to federal courts to vindicate their federal rights  under the federal Constitution and statutes, was, well, bizarre. So it was a great day when the Supreme Court’s Knick opinion finally took care of things by overruling Williamson County.

But court opinions don’t just write themselves. We know well because we spent our professional life crafting the raw material used in the making of judicial opinions — the appellate briefs. Writing legal prose that is understandable, clear and persuasive is usually a skill that takes a dollop of innate talent by the writer and is honed by practice. In this case the Chief’s majority opinion certainly meets these criteria. It is lucid, straightforward and does not leave the reader puzzled as to what the court meant to say. Oh sure, we are certain that some lawyers — those on the short end of the Chief Justice’s majority opinion — will find something to kvetch about. But that will be hard to do in this case because the Chief’s majority opinion leaves no doubt what he meant to say. One commentator aptly characterized the Chief’s writing in this case as “simple elegance.” That it was, and more. It also contained a hint of judicial distaste for the overruled precedent’s denial of justice to people who hadn’t done anything wrong but were nevertheless being abused by the very judicial/constitutional system that was supposed to protect their rights. Good show, Your Honor!

And last but not least, a tip of our hat to those  anonymous court clerks who (at least for now) have toiled in obscurity, assisting the Justices in the sometimes tedious task of legal research and initial opinion drafting that is essential in the production of the living law of which court opinion are made. Yes, we know. We occasionally kvetch at the clerks’ lack of a specialized experts’ knowledge of the fine points of matters that few lawyers — even after years of experience — get to know and understand.

So Hail to the Chief and to his “sorcerers’ apprentices” who have helped make the Knick majority opinion the masterpiece that it is.

Ding, Dong, The Witch is Dead! — Redux

We borrow this title from Michael Berger’s recent LA Daily Journal article, explaining what is so significant about the Supreme Court’s brand new decision in Knick v. Township of Scott. It holds 5 to 4 that constitutionally aggrieved American property owners no longer need to try to litigate their uncompensated taking claims is hostile state courts when they allege that their federal constitutionally protected property rights have been taken from them without compensation. A federal constitutional violation now entitles them to a straightforward federal judicial remedy (just compensation) like all other constitutionally aggrieved Americans, without a costly, uncertain and frustrating detour through state courts that as often as not provides them with no remedy, and consumes fortunes in pointless litigation. Knick’s holding restores takings claims to the same posture as those of all other constitutionally aggrieved Americans. Nice going, Your Honors!

Knick’s holding embodies a proposition of law that is so simple that you’d think no one would be able to argue with it — see the language of the Takings Clause of the Fifth Amendment, US Code 42 Sec. 1983 and all that other good stuff. But if you wonder what all the fuss has been about, you are probably underestimating the stubborn fierceness of the anti-property rights movement in America that for the past 30+ years has done its best to deny Americans the benefit of Justice Holmes’ 1920s holding that when the government regulates property in so severe a fashion as to deny its owners utility and value, that becomes de facto its taking for which just compensation must be paid.

So much has already been written about this in the past few days (with more coming) that at this point we refuse to add to the profligate slaughter of trees being consumed in producing the paper used in this enterprise. So enough for now! If you are a real taking junkie, we recommend the usual suspects: (a) for exhaustive treatment of the various approaches: there is Robert Thomas’ estimable blog which will tell you what you need to know to understand  the various legal approaches to this legal problem, how it began, and how it was solved. And (b) you might also take a look at two other things: one, the Knick opinions themselves, both in their majority — a masterpiece of legal writing by the Chief Justice — and the positively wacky and at times rather hysterical 4-Justice dissent by Justice Kagan, informing us that the sky has fallen and that henceforth SCOTUS precedent isn’t worth the paper it’s written  on. Don’t take our word for it. Look at it yourself, particularly the dissent’s peroration which is as good an example of over-the-top legal writing  as you are likely to find. It is so extreme and one-sided that if you take it at face value, you’d have to think that Brown v. Board of Education was wrongly decided because it broke with precedent instead of beseeching the legislature to help out.

Saving the best for last, do read the short Los Angeles Daily Journal article (entitled Ding, Dong, the Witch is Dead! — same as this blog post). This is intellectual gourmet stuff that has earned it author, Michael M. Berger, his unmatched reputation as a commentator and advocate in this field.

So pour yourself a drink, put your feet up, and get on with your reading. If you have an interest in this stuff, you won’t regret it.

Doubletalk From Justice Stevens About the Meaning of Kelo

If you haven’t done so already you might want to check out Professor Ilya Somin’s review of Justice Stevens’ latest autobiographical book in which he has some more to say about his intellectual misadventure in authoring the Kelo majority opinion. It’s available on the Reason magazine post. See

Stevens now concedes in his book that his Kelo opinion was based on a wrong interpretation of the takings clause, but hey man, he likes the Kelo result (more about that in a moment) so he is content to leave it standing. Stylistically, Somin’s review is fairly typical professortalk, but he gets his message across, and that message (conceded by Stevens) is that Kelo used the wrong legal doctrine to analyze the issue.

To a man of limited intellectual resources, like your faithful servant, all this high-falutin’ talk about relying on the Due Process doctrine as opposed to Takings law, and rearguing the selective incorporation doctrine, is pretty much beside the point. Why? Because what was at stake in Kelo (and its predecessor Berman v. Parker), was the meaning of the English language, not so much legal theory. Before you start theorizing you have to establish what you are talking about — i.e., what “public use” means in plain English.  And the Fifth Amendment phrase “public use” must mean something discernible to intelligent English-speaking people untutored in the eminent domain theorists’ double talk. Taking A’s property and handing it over to B for the latter’s private, profit-making, personal business use is not “public us” or “a public benefit” no matter how you torture the English language and no matter what legal theory you use. Such use may or may not (we’ll come back to the latter phrase presently) generate some public benefit by a collateral trickle down process, but that, like the building or enlargement of a single Target or Costco store is not public use.

Besides, many projects for which private property is taken turn out to be out-and-out failures — situations in which the proposed “public use” that the condemnor succeeds in selling to credulous judges never materializes, while the public gets fleeced. Though only one of many such failures, Kelo itself is a perfect example of the latter situation, as Somin notes in his review. The city and the court’s majority talked grandly about producing high-end shops, condos, a marina and a five-star hotel, that would be patronized by well-paid high-tech employees of nearby Pfizer pharmaceutical company, generating jobs and taxes. In reality, 19 years have elapsed but nothing has been built and no construction is in the offing. Nothing, nada, zip, bobkes. After displacing a group of faultless lower middle-class homeowners and bulldozing their unoffending homes to the ground, the subject land remains vacant until this day, generating no taxes and doing no one any good. Pfizer took full advantage of the tax benefits offered by the city, and when they ran out, sold its facility, and moved out of town, taking some 1400 jobs with it. And the cost to the public for this caper? About $100 million. Thanks a lot, Justice Stevens, for thus conferring this “public benefit” on the taxpayers of New London.

Neither Stevens nor Somin (though Somin concedes in passing that the Kelo project was a failure, of benefit only to local feral cats) say anything about all this, and they avoid any mention of the concept of accountability and civic responsibility for this fiasco. And you wonder why the American people grow ever angrier at those who govern them, increasingly providing the people with a choice between would-be Socialists and angry would-be swamp drainers.

This is important stuff. The courts never tire of evading responsibility for such capers by telling us that in deciding matters going to the right to take private property by eminent domain, they, though the guardians of the Constitution who have the last word on the meaning of the provisions in that document, are actually meek doormats who must yield to every whim of the legislatures, even though the decisions they are called upon to review are usually not really legislative but a mere say-so of unelected functionaries of a one-horse burg. Still, courts say that such decisions are “well-nigh conclusive” and as such get to trump would-be judicial interpretations  of the Constitution.

And as for bright, well informed law professors, like Somin, their efforts too often bring to mind Yale’s late, lamented Professor Fred Rodell’s acerbic observation:

“Suppose a law review writer wants to criticize a court decision. Does he say ‘Justice Fussbudget, in a long-winded and vacuous opinion, managed to twist his logic and mangle history so as to reach a result which is not only reactionary but ridiculous? He may think exactly that but he does not say it. He does not even say, ‘It was a thoroughly stupid decision.’ What he says is ‘It would seem that a contrary conclusion might perhaps have been better justified.” 48 Va. L. Rev. at 280.

Bottom line: as conceded by Stevens, the Kelo majority opinion is the most widely despised SCOTUS opinion in history. Rightly so. It does violence to the English language and to the most elemental notions of justice. Neither it nor the judges who apply it deserve the citizens’ respect. The Bill of Rights is supposed to protect Americans from government abuse, not facilitate it. And as for Justice Stevens, it’s time for him to go fishing, instead of carrying on in a vain effort to put some lipstick on his Kelo doctrinal pig.

The “Sprawl Warriors” Are at It Again

Don’t miss the message embedded in the Wall Street Journal editorial, Joe Biden’s Green Free Lunch, Wall St. Jour., 6/7/19, p. A14. Most of it is the usual political stuff, accurately described by its title. But buried in it is an interesting message of interest to us land-use mavens. The editorial describes Biden’s proposed “shopping list” of policy prescriptions that he wants the Democrats to adopt in the coming presidential election. What is of interest to us is the sixth (bulleted) item on Joe’s list, quoted as a part of Biden’s proposed platform. Ready? Here it goes:

He wants the Democrats to use “zoning as a tool to battle climate change” by “altering local regulations to eliminate sprawl and allow for denser, more affordable housing near public transit.”  In other words, Joe is plumping for the sort of new arrangement that was just rejected by the California legislature.

Will this effort succeed? We doubt it very much. If the California negative public (and eventually legislative) reaction to such an arrangement is any guide, this proposal won’t make it at the federal level either. If anything, issues of federalism stand in the way of such a proposal — the federal government is not authorized by the Constitution to regulate local land uses, and any attempt to convert Biden’s notion into reality is certain to arouse vigorous NIMBY reaction from established suburbanite home owners who like things the way they are, and are ready to go to the barricades to prevent any serious changes in the established suburban zoning practices that, among other things, have converted suburban home ownership into a bonanza for large numbers of existing homeowners who — at least in desirable coastal areas — have been enjoying exploding, six-figure home equities.

Still, these days, you can’t predict what the would-be “liberal” reformers are capable of coming up with. See for example a federal lawsuit now pending in the US Court of Appeals for the 9th Circuit, in which self-motivated “students” are suing Uncle Sam demanding a court judgment that will order Uncle to stop global warming. So far, they haven’t been laughed out of court. But the case is far from over, so who knows what their Lordships will come up with. So keep an eye on Biden’s proposal as the presidential campaign moves along. You may yet be called upon to discuss this caper seriously, or at least with what purports to be a straight face.