GOP Judicial Activism Takes a Hit

The “takings” clause of the 5th Amendment is for conservatives what the equal protection clause of the 14th is for liberals. It wouldn’t be fair to say that conservatives cherish property the way liberals cherish equality. But it would be fair to say that the takings clause is the conservative recipe for judicial activism -- imposing their agenda through the courts, rather than bothering with democracy -- the way they say liberals have misused the equal protection clause.

Of course, conservatives always claim to be against judicial activism. Liberals have long suspected that this was a decoy, and that once conservatives had control of the federal courts, they would twist their mustaches, laugh contemptuously and reveal the various policies they planned to impose by judicial fiat.

Conservatives and liberals alike have been waiting for this moment for a third of a century. Each Supreme Court appointment by a Republican president seems to be “it.” And yet “it” hasn’t happened. Roe vs. Wade -- the high water mark of liberal judicial activism -- still stands. And on Thursday, the court said a surprise “no thanks” to judicial activism, Republican style.

The equal protection clause was a handy tool for liberals because just about anything the government does or doesn’t do can be framed as treating people unequally. (You get pulled over for speeding and he doesn’t; she gets a job and you don’t; the president calls on him at a news conference and not you, and so on.) When does unequal treatment become unconstitutional?

In the heyday of the Warren court, almost anything on your wish list was at least worth a try. (Roe vs. Wade was technically a “due process” case, but it used “equal protection” analysis. Don’t ask.) Almost any government activity can also be seen as taking property “without just compensation.”

The basic model of an unconstitutional “taking” would be if the government threw you out of your house.

But the godfather of the “takings” movement, professor Richard Epstein of the University of Chicago Law School, says: Suppose the government enacts zoning or environmental regulations that reduce the value of your house by half? Isn’t that a taking, just as if the government had taken your house itself? Or suppose it gives someone a government benefit that you don’t get, but, as a taxpayer, will have to pay for? Isn’t that a taking also?

In law school, this is called “salami slicing” and it has been known to drive people mad, including (in the opinion of some), professor Epstein. But his logic is compelling. Once you start down the takings road, it’s hard to stop before Epsteinville. Possibly for that reason, the Supreme Court has clung pretty tight to literalism, and declined repeated invitations to use the takings clause like a scythe to cut the government down to size.

The case decided on Thursday, though, seemed promising to takings fans because it wasn’t about compensation. It was about the requirement that any government taking must have a “public purpose.” They can’t take your house and give it to the mayor’s mistress, even if they pay you for it. But they can, apparently, take your house and tear it down to make room for a development of trendy shops, restaurants, a hotel, and so on. That was the plan in New London, Conn., until a few working-class spoilsports wouldn’t budge.

The court ruled, 5-4, that yuppification is a valid public purpose. Or at least it was reasonable for the city of New London to promote yuppification. Who wouldn’t like a few more Starbucks in town? The four dissenters (O’Connor, Scalia, Thomas and the chief) said that if this is a “public purpose,” what in the world is not?

One answer is that the town’s elected officials thought the project served a public purpose, and the subsidies and favors were worth the price. But they may or may not have thought this.

When local government showers a big development with money and favors, it’s usually not about sovereignty but about lack of sovereignty. Developers play jurisdictions off against one another, extracting concessions from all that none would actually make a sovereign decision to give. A Supreme Court decision that concessions of this sort were unconstitutional would have taken them off the table and actually increased the effective sovereignty of elected officials.

A couple of weeks ago, the court closed off another promising avenue for conservative activism when it ruled that states cannot exempt themselves from federal laws against the medical use of marijuana. Like almost all assertions of federal power over the states, this one was based on the constitution’s commerce clause. The logic is often far-fetched -- how does medical marijuana affect interstate commerce? And some conservatives would like judges to start throwing out federal laws wholesale on commerce clause grounds. The court, once again, said no thanks.

So the danger of conservative judicial activism has been averted for another year. Stay tuned.