The prolific Professor Ilya Somin has charged into the breach again and has authored another article; this one on the recent SCOTUS Arkansas Fish & Game and Koontz cases. To check out the abstract, click here. The citation to it is 2013 Cato Supreme Ct. L. Rev. 215.
We agree with Prof. Somin’s conclusion that goes:
“Although both cases represent incremental progress, there is still a long way to go before property rights cease to get second-class treatment from the Court.”
In other words, these victories are better than the proverbial poke in the eye. But that’s all.
Our conclusion is that while we appreciate his sentiments, Professor Somin is an optimist. In our opinion, when it comes to eminent domain, particularly nonphysical takings, SCOTUS has vaccilated between indecisiveness, ignorance of the subject, obfuscation and hostility to private property rights, interspersed with an occasional ruling in favor of the owners. Bear in mind that a “ruling in favor of the owners” is not necessarily a victory. Keep in mind that between the court’s return to this topic in the wretched Penn Central case in 1978* and now (that’s a period of 35 years), there has been only one case — count ’em, one — in which the court actually affirmed a financial just compensation judgment in favor of a property owner. That was the Del Monte Dunes case. All other cases in which owners nominally won, were of the go-back-to-the-lower-court(s)-and-try-again sort. For a prominent example, check out what happened in First English Evangelical Lutheran Church v. County of Los Angeles after the lower court’s dismissal was reversed by SCOTUS and the case was was remanded. Which is meaningless to property owners with a limited life span and limited resources available to be spent on litigation, but it tells us that the court’s ostensible rulings in favor of owners may be something less than wholehearted.
As for us, we said it all in 1979 — that’s right, 34 years ago — in the ABA Journal, where we said:
“The U.S. Supreme Court increasingly grows institutionally incompetent to discharge its central function of definitive construction of the Constitution. Controversies that divide the country for years emerge from the marble temple in Washington in a form that can be charitably described as bewildering: cases such as Bakke, for example, resolve nothing and only assure decades of litigation certain to consume kings’ ransoms in resources, with no assurance that in the end we will have any reliable. guide. Gideon Kanner, Competence, Competence, Who’s Got the Competence, 65 ABA Jour. 160 (Feb. 1979).
We emphasize for the record that we wrote this in 1979. Now, the year is 2013, and the Court has once again remanded a reverse discrimination case to the lower courts for some more judicial diddling around with the proper contours of a “test” for determining whether what’s involved is permissible “affirmative action” or impermissible reverse discrimination. Rots of ruck on that trip, guys. Give us a call in another 34 years when you decide.
In inverse condemnation, it’s even worse because in the Penn Central case — the “polestar” case — SCOTUS confessed in writing that it has been “simply unable” to say what is a coherent statement of a cause of action in inverse condemnation, and only gave us three fuzzy “factors” with which to play around in this latter day search for the Snark. So rots of ruck to us.
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* If you really want to know what’s wrong with the Penn Central opinions, read our article Making Laws and Sausages: A Quarter-Century Retrospective on Penn Central Transportation Co. v. City of New York, 13 Wm. & Mary Const. L. Jour. 653 (2005). It’s long, but if we do say so ourselves, it’s a detailed autopsy of the Penn Central mess. At least read the Conclusion from which you will learn inter alia that after all the high level sturm und drang, it was the City of New York, not Penn Central, that wound up paying for the restoration and maintenance of the Grand Central Terminal, so this whole litigational to-do that wasted a King’s ransom in private and judicial resources, and only confused the law, was unnecessary. Actually, the city could have had a better deal had it settled with Penn Central on terms the parties had agreed to after trial, but which were not implemented when the city decided to appeal instead.