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Sotomayor: Another Potential Blow To Property Rights

Posted by: Andrew Langer on Monday, July 13, 2009 at 1:44:31 pm

The nomination of Sonia Sotomayor has brought all manner of reaction from across the political spectrum, positive and negative, liberal and conservative. The comment was raised on my Facebook page that Sotomayor was "inspiring and refreshing", to which someone responded, "Inspiring and refreshing is for the newest "fashiontini" not a Supreme Court Justice."

I'm not a lawyer, but between the ages of 16 and 28 I worked for and with lawyers, and for 4 years was the reader to a blind environmental lawyer. One of his areas of expertise was private property rights, and I developed a real passion for the subject.

I have continued to be dismayed with what Justice Scalia termed as the "relegation of property rights to the status of a poor relation". We were warned about Justice Roberts' view of the mutability of private property rights, even coming on the heels of the Kelo decision, and our concerns were justified when Roberts paved the way for further erosion of property rights in the Jones v. Flower decision (I wrote on that here: http://langrrr.blogspot.com/2006_05_01_archive.html ).

And now we have Judge Sotomayor, who, apparently, could be even worse. The noted law professor, Richard Epstein, has this to say in a piece at Forbes (http://www.forbes.com/2009/05/26/supreme-court-nomination-obama-opinions-columnists-sonia-sotomayor_print.html ):

"Here is one straw in the wind that does not bode well for a Sotomayor appointment. Justice Stevens of the current court came in for a fair share of criticism (all justified in my view) for his expansive reading in Kelo v. City of New London (2005) of the "public use language." Of course, the takings clause of the Fifth Amendment is as complex as it is short: "Nor shall private property be taken for public use, without just compensation." But he was surely done one better in the Summary Order in Didden v. Village of Port Chester issued by the Second Circuit in 2006. Judge Sotomayor was on the panel that issued the unsigned opinion--one that makes Justice Stevens look like a paradigmatic defender of strong property rights.

"I have written about Didden in Forbes. The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The "or else" was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: "We agree with the district court that [Wasser's] voluntary attempt to resolve appellants' demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation."

"Maybe I am missing something, but American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court. Justice Stevens wrote that the public deliberations over a comprehensive land use plan is what saved the condemnation of Ms. Kelo's home from constitutional attack. Just that element was missing in the Village of Port Chester fiasco. Indeed, the threats that Wasser made look all too much like the "or else" diplomacy of the Obama administration in business matters.

"Jurisprudentially, moreover, the sorry Didden episode reveals an important lesson about constitutional law. It is always possible to top one bad decision (Kelo) with another (Didden). This does not augur well for a Sotomayor appointment to the Supreme Court. The president should have done better, and the Senate, Democrats and Republicans alike, should subject this dubious nomination to the intense scrutiny that it deserves."

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Private comment posted on September 10, 2009 at 12:54:07 pm

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