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.

Comments

[santamonica811]

I would have a ton of sympathy for landlords who purchased unencumbered land, and suddenly have rent control forced upon them. That does seem like a taking. But, for a landlord who purchased already-encumbered land and is now whinging about it? Nope, not an iota of sympathy. (This is totally separate from the question of if rent control is, on balance, a good or a bad policy.)

When I buy land that had a height restriction on it of, say, 40 feet, then that restriction has been factored in, in terms of determining fair market value. No reason why I should get a windfall from the govt, if I now claim, "I want to build a 6 story building, and I'm owed compensation, for the forced reduction to 4 stories."

[Stephen Lathrop]

Professor Adler, on what basis except policy meddling should any justice cherish a preference for any particular kind of case or controversy?

I am weary of cases taken with an eye to use the transformative magic of textualism to gut long-standing precedents and policies. MAGA is in the political saddle, and the Roberts Court's oaths and ethics securely in the trash bucket with the lid down. I expect shocking decisions to multiply further.

Not looking forward to it. How about you?

Do you suppose (or hope?) gutting of legal environmental protections and policies to continue indefinitely?

[Krayt]

Your last sentence confuses policy validity with legal validity. The other side is, of course, the opposite. Which is to say, exactly the same.