"Unwitting foot-soldiers in this thinly veiled Libertarian crusade"


That's how Fifth Circuit Court Judge Jacques Wiener described his colleagues in a snarky and clumsily written dissent in Severance v. Patterson, which deals with a challenge to Texas's Open Beaches Act by the libertarian Pacific Legal Foundation. Homeowner Carol Severance claims that the law violated her property rights under the Fourth and Fifth Amendments. Here's Judge Wiener:

[T]he real object of these Californians' Cervantian tilting at Texas's Open Beaches Act ("OBA") is clearly not to obtain reasonable compensation for a taking of properties either actually or nominally purchased by Severance, but is to eviscerate the OBA, precisely the kind of legislation that, by its own declaration, the Foundation targets. And it matters not whether Ms. Severance's role in this litigation is genuinely that of the fair Dulcinea whose distress the Foundation cum knight errant would alleviate or, instead, is truly that of squire Sancho Panza assisting the Foundation cum Don Quixote to achieve its goal: Either way, the panel majority's reversal of the district court (whose rulings against Severance I would affirm) has the unintentional effect of enlisting the federal courts and, via certification, the Supreme Court of Texas, as unwitting foot-soldiers in this thinly veiled Libertarian crusade.

Complete decision here (pdf).

It's true, the Pacific Legal Foundation is committed to defending property rights against government abuse. Just like the NAACP is committed to safeguarding civil rights. But what are the chances that Judge Wiener would dismiss the NAACP's efforts in Brown v. Board of Education or Buchanan v. Warley as "Cervantian tilting"?