If the question is whether the Court\u27s recent property rights decisions represent unwarranted judicial activism, my answer is an unequivocal  Yes!  Explaining why requires some care. After all the jurisprudential battles of the recent past, it is hard to state what makes a decision  activist,  let alone unwarrantedly so

Byrne, J. Peter

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Georgetown Law Scholarly Commons

Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2002 Judicial Activism in the Regulatory Takings Opinions of Justice Scalia J. Peter Byrne Georgetown University Law Center, byrne@law.georgetown.edu   This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/1689  1 Geo. J.L. & Pub. Pol'y 93-97 This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub  Part of the Judges Commons, Land Use Law Commons, and the Property Law and Real Estate Commons Judicial Activism in the Regulatory TakingsOpinions of Justice ScaliaJ. PETER BYRNE*If the question is whether the Court's recent property rights decisions repre-sent unwarranted judicial activism, my answer is an unequivocal "Yes!" Explain-ing why requires some care. After all the jurisprudential battles of the recent past, it ishard to state what makes a decision "activist," let alone unwarrantedly so.My stance is quite traditional. I want to suggest that judicial activism shouldbe understood as judicial enhancement of judicial power through expansion ofthe scope of vague terms in the Constitution without serious engagement withits text, history, or other limiting principles, joined with a disregard for theconstitutional primacy of democratic lawmaking by elected representatives,both federal and state. In using this definition, I want to stand in the traditionoriginating with Holmes's dissents in substantive due process cases,' findingflower in liberals' critique of the Court's obstruction of New Deal legislation,articulated, for example, by Robert Jackson,2 and finding fresh energy in thecriticisms of the Warren Court's pursuit of social egalitarianism through constitu-tional rulemaking. The value I uphold, following Brandeis, is the authority ofdemocratically elected legislatures to shape fundamental legal concepts whennew problems are encountered.3To analyze regulatory takings developments from this perspective, I shallconcentrate on the jurisprudence of a single, central justice. Justice Scalia is theattractive choice, for several reasons. First, he has been the most vehement criticof the Court when it has engaged in what he believes to be unwarranted judicialdisplacement of the prerogatives of the legislative process. He gave a passionatestatement in his dissent in Planned Parenthood v. Casey,4 castigating the"Imperial Judiciary" for basing constitutional decisions on "philosophic predilec-tion and moral intuition."5 Off the bench, he specifically has argued againstexpanding constitutional protection of property rights through the Due ProcessClause.6 Second, he has eschewed any reliance on the text or original meaningof the Takings Clause, frankly acknowledging in Lucas v. South Carolina* Professor of Law, Georgetown University Law Center. This essay presents in slightly modifiedform remarks delivered at the Federalist Society national convention in November 2001.1. See, e.g., Adkins v. Children's Hospital, 261 U.S. 525, 567-71 (1923); Adair v. United States, 208U.S. 161, 190-92 (1908); Lochner v. New York, 198 U.S. 45, 65 (1905).2. See ROBERT JACKSON, THE STRUGGLE FOR JUDICIAL SUPREMACY (1941).3. See Pa. Coal Co. v. Mahon, 260 U.S. 393, 417 (1922) (Brandeis, J., dissenting).4. 505 U.S. 833 (1992).5. Id. at 1000.6. Antonin Scalia, Economic Affairs as Human Affairs, in CATO INST., SCALIA v. EPSTEIN: TWO VIEWSON JUDICIAL ACTIVISM I (1985). Professor Epstein continues to believe that Justice Scalia unduly adheresto "legal process" conservation. This observation clearly is true by comparison with Professor Epstein'sbold willingness to use the Constitution to restore property and contract to primacy.9394 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICYCoastal Council7 that the unbroken interpretation of the clause before 1922 wasthat it embraced only expropriations and permanent physical invasions.8 Heoffered as authority for his views only a vague salute to a mythical "historicalcompact," which he neither identified nor explicated. 9 Justice Scalia's franknessallows me to put to one side for a moment the tangled question of whetherjudges are unduly active when they seek to confine the Constitution to whatthey think it embraced in 1788 or 1868.'0 Moreover, he has eschewed resultorientation, which I want to contrast with activism as such, by adhering to ajurisprudence of rules that frequently prevents him from simply balancing hisway to the outcome that seems to him most appropriate, all things being equal.This approach leads him to articulate principles of general significance, whichconvey what he takes to be the enduring values in the Constitution. Finally, hiswriting always engages us with his intelligence and rhetorical flair; he is fun toread and to argue with and about.Rather than take you through each of Justice Scalia's opinions seriatim, I willdescribe what I believe are the three most salient thematic contributions he hasmade to regulatory takings doctrine and explain why each is significant. At theend, I will argue that this amounts to judicial activism by my measure.1. Scalia revived the means-ends analysis of regulations of property usedeployed in economic substantive due process decisions from the pre-1937 era.He transferred them to the Takings Clause and used that transfer alone to justifyheightened scrutiny of fit between means and ends, so as to permit judicialsupervision of the wisdom of legislative and administrative judgments, withoutoffering any principled justification for doing so." Following this lead, lowercourts frequently invalidate regulations because of their independent judgmentthat the legislative program will not "substantially advance" some governmentpurpose. The most striking manifestation of this is the line of cases in the NinthCircuit striking down rent control laws on the ground that they will not achievetheir stated social objectives. ' 2 One need not be a defender of rent control as amatter of legislative policy to be troubled by such a judicial role-one madeeasy by the Court's embrace of heightened standards of fit in some regulatorytakings cases.This doctrinal shift does not amount to a complete return to 1936. Thescrutiny is only "intermediate," not "strict." Moreover, to date, the decisions donot impose a strong substantive restriction on the legislative objectives that can7. 505 U.S. 1003 (1992).8. Id. at 1014.9. Id. at 1028.10. ANTONIN SCALIA, A MArTER OF INTERPRETATION 43 (1997). Justice Scalia has offered the generalopinion that modem jurisprudence gives less constitutional protection to property than the Framersintended.I1. Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 836-37 (1987).12. See, e.g., Chevron USA, Inc. v. Cayetano, 224 F.3d 1030 (9th Cir. 2000), cert. denied, 532 U.S.942 (2001). I should acknowledge that I was counsel to petitioner at certiorari stage.[Inaugural:93REGULATORY TAKINGS OPINIONS OF JUSTICE SCALIAbe chosen, a characteristic feature of the old economic substantive due process.Interestingly, though, Justice Scalia himself urged in a concurring opinion inPennell v. City of San Jose 3 that a city has no business reducing a rent increasethat otherwise is economically "reasonable" in order to respond to "hardship" ofthe tenant. This seems very close to stating that wealth redistribution is not alegitimate goal for legislation, a view underlying many of the Lochner-eracases. It is fair to note that more recently, in City of Monterrey v. Del MonteDunes, 14 Justice Scalia pointedly expressed no opinion as to the propriety of thesubstantially advance test, while indicating that whether any legislative purposeis legitimate is a question of law for a court to decide.' 52. Scalia created the first "per se" test to condemn a restriction on an owner'suse, that is, that the government must pay compensation whenever it refuses topermit any economic use of the land, regardless of the public health or environ-mental justification for the restriction (unless the use prevented would amountto a common law nuisance). 16 In a subsequent concurring opinion, he hasexpressed willingness to expand the scope of this per se rule, placing beyondconsideration the extent to which the regulation has conferred economic valueon the land while prohibiting development. 17 He also has expressed willingnessto abandon to some extent the "parcel-as-a-whole" rule, a development thatwould greatly increase the number of regulations condemned by the per se rule,by evaluating only the effect on parts of the parcel that cannot be developed,such as building set backs. We may learn something definitive here in thepending Lake Tahoe' 8 case, which brings a blunt per se challenge to temporarydevelopment moratoria. In general, Justice Scalia has favored this per se testover the Penn Central'9 balancing test, in which the nature of the governmentinterest must be weighed with factors of timing and public need.2 °3. Justice Scalia has indicated an assumption that "property," as used in theTakings Clause, has a static federal constitutional (dare I say "natural"?)meaning, apart from state property law.2 ' This would reverse the claim madeoften by the Court in due process opinions by Justices Stewart and Rehnquist,decisions viewed then as "conservative" and "restrained," that property rightsare created and their meanings determined, not by the Constitution, but by13. 485 U.S. 1 (1988).14. 526 U.S. 687 (1999).15. Id. at 732 & n.2.16. See Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (Scalia, J.).17. See Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 747-48 (1997) (arguing thateconomic benefit to a regulated party from transferable development rights should only be used todetermine whether there was adequate compensation for the taking, not to determine whether there wasa taking at all).18. Tahoe-Sierra Preservation Council v. Tahoe Reg'l Planning Agency, 216 F.3d 764 (2000), cert.granted, 533 U.S. 948 (2001).19. Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978).20. See id. at 124.21. See Palazzolo v. Rhode Island, 533 U.S. 606, 620 (2001).2002]96 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICYindependent sources of law, primarily state law.22 I would add my view thatsuch subsidiarity in property norms will support the continued vitality of theprivate property law and system by permitting adjustment of rules to changingeconomic and social conditions. Such adjustments do not come only fromcommon law revisions in property rights, but through statutes and regulationsdealing with a wide range of topics from homeowners associations to historicpreservation.The signposts of Justice Scalia's view on the constitutional content of prop-erty may be found in several opinions. He has so indicated by 1) subjecting statenuisance law decisions to federal review in the takings context; 23 2) arguing thatregulatory takings are not about protecting reasonable expectations regardingthe scope of permitted uses at a point in time but about static substantive limitson what property rights must permit;24 and 3) hinting at denying a state courtthe authority to find public rights of access to state beaches by "custom" understate property law.25Besides greatly enhancing the reach of the Fifth Amendment, and therebyjudicial power, the move to constitutionalize property greatly constricts states'law-making authority. States may not, without federal judicial leave, amendproperty rules to enhance efficiency or fairness, as they have done sinceVirginia abolished the fee tail soon after independence.2 6 Moreover, theiradministration of local land use regimes must be conducted with a firm viewtoward the attitudes of federal judges. Indeed, Scalia's regulatory takings opin-ions depict state and local legislators as relentlessly seeking to accumulate27booty from defenseless property owners.A great constitutional achievement of the Twentieth Century was the place-ment of questions of economic and social policy in the hands of electedrepresentatives, rather than federal judges. But Justice Scalia's regulatory tak-ings principles grow from a deep suspicion of modern environmental legisla-tion. Complex restrictions in the service of apparently obscure ecological valuesseem to him threatening to a legal order based on individual rights and marketactivity. He fears that environmental law's concerns about the harms thattraditional economic, or indeed personal, behavior cause our world will poten-tially empty the precious category of activities that we can pursue freelybecause they do not harm others. This seems to me to explain his embrace inLucas of nuisance law as the baseline for the police power; nuisance deals with22. See Phillips v. Wash. Legal Found., 524 U.S. 156, 164 (1998); Bd. of Regents v. Roth, 408 U.S.564, 577 (1972).23. See Lucas, 505 U.S. at 1030.24. See Palazzolo, 533 U.S. at 620.25. See Stevens v. City of Cannon Beach, 510 U.S. 1207 (1994) (Scalia, J., dissenting from a denialof certiorari).26. See John F. Hart, "A Less Proportion of Idle Proprietors": Madison, Property Rights, and theAbolition of Fee, 58 WASH. & LEE L. REV. 167 (2001).27. See, e.g., Palazzolo, 533 U.S. at 619.[Inaugural:93REGULATORY TAKINGS OPINIONS OF JUSTICE SCALIAserious, measurable harm to discrete individuals that can be treated as excep-tional, not pervasive degradation of natural systems that require us to change theway we live. In his opinions, Justice Scalia often has treated these broaderecological values with derision. In Nollan, he found them irrational.28 In Lucas,he insisted on characterizing concerns about beach erosion as solicitude fortourism. 29 In Palazzolo, he characterized state concern for preservation ofnatural water bodies and wetlands as a search for free booty.30 In the last case,Justice O'Connor chastised him for an "inapt 'government-as-thief' simile ...symptomatic of the larger failing of his opinion.'Given that these environmental laws are firmly cemented in the people's regard,repeatedly defeating attempts at repeal by political means, Justice Scalia seems tohave persuaded himself that they often exceed traditional constitutional limits, even ifthese limits need to be newly articulated or rediscovered. His regulatory takingsopinions reflect an attempt to erect a new constitutional dike against the floodwatersof environmentalism and the legal changes such concerns have prompted. I think thatjudges have no business using the Constitution to forestall widespread legislativechange or insist on an obsolete legal paradigm.Since Lucas in 1992, Justice Scalia has not written a regulatory takingsopinion for the Court. The Chief Justice, who has always been in the majority,has assigned writing the Court's opinion to himself or another justice whom hehas viewed as less categorical or overtly ideological. While consistently findingfor the property owner, many of these opinions have been maddeningly opaqueregarding the governing principles of takings law. They have evinced, neverthe-less, a determination to move slowly and not sweep aside social consensus.Advocates of judicial restraint should prefer even more that the salience ofenvironmental restrictions on property use be debated and decided by the peopleat their most appropriate level of democratic decision-making.In his vivid dissent in Casey, Justice Scalia held up as a caution the Court'sdisastrous opinion in Dred Scott,32 where Chief Justice Taney sought to settlenational turmoil by declaring firmly for slavery.3 3 With all respect, somethinganalogous seems here afoot. The Court's regulatory takings cases, glossed withJustice Scalia's conceptual approach, seem to aspire to settle the nature ofproperty rights in an ecological age. They argue that property owners cannot beforced to bear the costs of the gradual and widespread environmental harms thattraditional uses may cause, even if the trend in statute and regulation is toprohibit uses that degrade the environment. Such a judicial stand, ironically,may vitiate the ability of private property to thrive by adjusting to new scientificand social consensuses.28. Nollan, 483 U.S. at 838-41.29. Lucas, 505 U.S. at 1022-23, 1025.30. Palazzolo, 533 U.S. at 619 (Scalia, J., concurring).31. Palazzolo, 533 U.S. at 636 n.* (O'Connor, J., concurring).32. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).33. Planned Parenthood v. Casey, 505 U.S. 833, 998 (1992).20021

Judicial Activism in the Regulatory Takings Opinions of Justice Scalia

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Judicial Activism in the Regulatory Takings Opinions of Justice Scalia

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