« Kelo and regulatory takings | Main | Agreeing with Tom Merrill »
Thursday, June 23, 2005
the ebb and flow of takings doctrine
Kelo | Posted by Eric Claeys at 03:57 PM
Tom Merrill raises an interesting question for consideration -- why the Rehnquist Court's takings revolution has fizzled out. Here are a few preliminary thoughts. I think a lot of big doctrinal changes move in cycles. At the beginning, a determined coalition has a lot of running room. There may not be a lot of case law. The Court can make big changes in a hurry. Also, especially in cases in which the conservatives intend to take the law against contrary political and academic trends, in the early cases, the determined majority can swing at low-hanging fruit and avoid the harder questions. But quite often, in the early cases, the Court talks a much tougher game than it really means. This is really true when the conservatives cite original meaning as authority for rolling back pro-government doctrine. The tough talk eventually calls into question other, established doctrines, or political practices that are really well settled. Sooner or later, the most squeamish members of the coalition switch sides to side with the conventional result. It takes a decade or 15 years for this cycle to play out.
That portrait explains Lopez and Nollan/Dolan/Lucas. In the Commerce Clause, Justice Kennedy turned out to be all for federalism when dealing with what Jack Balkin called a "grandstanding" law, but not when forced to consider interfering with the DEA. In Lucas, Kennedy and O'Connor were fine with a rule requiring that environmental/conservation measures leave owners with at least one productive use of land; O'Connor and Kennedy bailed when an owner made a colorable argument that Lucas applied to a garden-variety zoning moratorium. Nollan/Dolan had more bite in practice, but exactions are in many senses more extreme than non-exacting zoning or conservation regulations. The conservative majority NEVER was enthusiastic about taking on rent control (see Yee v. Escondido), hence Lingle was a slam-dunk.
But Kelo suggests that the Court isn't even going to start down this path in public use. Or, to go analogize to the Commerce Clause, maybe Kelo is like Raich coming before Lopez. As I suggested and Tom now suggests, maybe Justice Kennedy will switch votes in a case on facts suggesting that the condemning authority is in the back pocket of the developer or business that wants to build.
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