Unsurprisingly, the U.S. Supreme Court denied certiorari in the Manhattanville case on December 10, 2010. That’s the one where New York took an entire neighborhood for the benefit of Columbia University, and where the condemnor’s decision to take was tainted by all sorts of irregularities. We can’t say we are surprised with this result, but that still leaves open the question of why? Why has the court ceased to be interested in the takings field so abruptly? That can only be the subject of speculation. Here is ours.
Something happened after the court’s recent venture into this field. First, after mucking around with the question of regulatory takings all through the 1980s, and after screwing things up in a monumental fashion, the court gave up and withdrew from that field of law, as evidenced by the San Remo Hotel case. If you are interested in our detailed view of that problem, see Gideon Kanner, Hunting the Snark, Not the Quark: Has the U.S. Supreme Court Been Competenet in Its Effort to Formulate Coherent Regulatoty Takings Law? 30 Urban Lawyer 307 (Spring 1998).
Ditto for direct condemnation. This took the form of the Kelo case which stimulated even more criticism of the court’s handiwork. Though Kelo noted a few potential limitations on the exercise of the power of eminent domain, particularly in Justice Kennedy’s concurring opinion (which, given the 4 to 4 to 1 split, is the opinion of the court), the court has never applied them in spite of having had opportunities to do so. For our detailed view of that mess see Gideon Kanner, Kelo v. New London: Bad Law, Bad Policy and Bad Judgment, 38 Urban Lawyer 201 (Spring 2006).
Bottom line: the Justices have been so scalded by the justified public reaction to their wretched handiwork in this field that they have decided to stay out of it. We don’t see much of a chance of correction of this situation in the near future. It seems to us that the justices have concluded that this field of law is a lose-lose situation for them. They lack the five votes that are necessary to articulate any kind of coherent, balanced legal doctrine that litigants and lower courts can reliably use in future cases, so being unable to rectify the mess of their creation, they decided to leave this subject alone because messing with it further, given the court’s composition, can only make things worse.
So it all boils down to the bon mot of the late Bert Burgoyne, a distinguished Detroit eminent domain lawyer, who once observed that the problem with the field of eminent domain is that liberal judges don’t believe in private property rights and conservative judges don’t believe in making the government pay. So between the two of them, we have a hard row to hoe.