Tag Archives: Pacific Legal Foundation

Testing The Current Court

The worst “hangover” from four years of Trump is undoubtedly the composition of the country’s federal courts–including but not limited to the Supreme Court. Granted, Trump–who wouldn’t know a legal principle if he fell over one–wouldn’t have known how to stuff the courts with rightwing ideologues; Mitch McConnell is the villain. But Trump enabled him.

In a recent column for the New York Times, Linda Greenhouse explained the troubling implications–and predictive value– of an upcoming Supreme Court case.

The case that the Supreme Court heard this week about a California law granting union organizers access to private farms has been described as a labor case, which it marginally is. It has also been described as a case about property rights, which it definitely is. But what makes Cedar Point Nursery v. Hassid one of the most important cases of the current term is the question it presents for the newly configured court: whether, after years of disappointment, the political right may finally be able to take the Supreme Court for granted.

The case is being brought by the Pacific Legal Foundation, and as Greenhouse reports, Pacific group is using Cedar Point–a company that grows strawberries– and another employer that packs and ships citrus fruit and grapes, as “stalking horses for its long-running project to elevate property rights.”

The case involved union access to agricultural workers. The California law being challenged had been passed during Cesar Chavez’s drive to organize the state’s farmworkers. It limited the ability of the union to approach workers in the field to periods before and after the working day and to three hours on 120 days of a year.

Greenhouse focused in on an illuminating–and to lawyers, startling–exchange between the lawyer and Justice Kavanaugh. Kavanaugh referred to a 1956 case that balanced employers’ property rights agains union organizing rights, and noted that–under that test–Pacific would “prevail”–it would win its case. The lawyer for Pacific “rejected out of hand” that potential path to victory.

Pacific isn’t interested in just winning its case. It wants to change the law.

The Pacific Legal Foundation doesn’t want a balancing test. It wants a categorical rule — referred to throughout the argument as a “per se rule” — that any entry by a union onto private land, if authorized by the state, is a “taking” of private property in violation of the Fifth Amendment’s Takings Clause (“nor shall private property by taken for public use, without just compensation”). Any entry at all.

So let me ask you this,” Justice Amy Coney Barrett said to Mr. Thompson. “What if California had a regulation that permitted union organizers to go onto the property of your clients one hour a day, one day a year. Is that a taking subject to the per se rule?”

Yes, the lawyer replied.

Barrett clerked for former Justice Scalia, who championed an expansion of the categories of government action that count as a “taking.”  The Fifth Amendment requires government to compensate property owners for takings, and there has long been an effort to turn regulations–especially environmental regulations–into compensable takings subject to that Amendment.

If you have a wetland on your property and regulations impede your ability to develop it, for example, the government would have to “compensate” you.

Until a 1992 case, Lucas v. South Carolina,  courts had defined takings as the physical occupation of private property, usually via eminent domain.

Government actions that didn’t “take” private property in the literal sense, but simply limited its use in certain ways, were regarded as “regulatory takings,” with the private and governmental interests being weighed against one another to determine whether compensation was required…

When a regulation “declares ‘off-limits’ all economically productive or beneficial uses of land,” Justice Scalia wrote for the court, “compensation must be paid to sustain it.”

Ever since, the Pacific Legal Foundation has argued for the adoption of what Scalia called a “categorical” taking.

That was the war that resumed at the Supreme Court this week, and that history explains why, from the Pacific Legal Foundation’s point of view, anything short of total victory is beside the point.

Greenhouse notes that whether the court buys Pacific’s theory will tell us a great deal about the success of McConnell’s effort to refashion the courts.