Justice Gorsuch Wants To Hear More (Takings) Cases

Justice Gorsuch shows more interest in property rights challenges than his colleagues on the Court.

Yesterday, the Supreme Court denied certiorari in two cases, G-Max Management v. New York and Building and Realty Institute of Westchester and Putnam Counties, Inc. v. New York, that sought to challenge the constitutionality of New York's rent stabilization laws, primarily on Fifth Amendment Takings Clause grounds.

The Roberts Court has been quite sympathetic to Takings Clause claims, but has also largely avoided taking case that asked the Court to make dramatic changes in existing law. In effect, the Court has given property rights activists a string of base hits, but no Grand Slams. These two cases had the potential to advance the constitutional protection of property rights quite substantially, but the Court showed little interest. On the Order List, only Justice Gorsuch is listed as supporting certiorari.

In the past, I have repeatedly noted Justice Kavanaugh's apparent interest in granting petitions of certiorari that his colleagues rejected. Interestingly enough, he did not join Justice Gorsuch in supporting certiorari here.