APU Legal Studies Original

Supreme Court Ruling Heralds Ideological Shift for Decades

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One of the final recent decisions of the U.S. Supreme Court term highlights its ideological divide that appears to signal its posture for years to come.

Last month, the high court issued a ruling in Cedar Point Nursery et al. v. Hassid et al., which examined the constitutional defense of personal property rights versus trade union access to private property without owners’ consent in order to advance workers’ rights.

“Even though property owners have a right to exclude trespassers, the state’s Union Access Regulation takes an easement that allows the union organizers to enter a business’s private property three hours a day, 120 days a year,” the Pacific Legal Foundation explained. “The businesses asked the U.S. Supreme Court to invalidate California’s unlawful regulation and affirm that government can’t allow unions to invade private property and disrupt commercial operations without paying compensation for a property taking.”

The conservative majority’s 6-3 decision in favor of the petitioners, clearly based along party lines and the 42-page decision, offers insight into the reasoning and the ideological backdrop of the majority and minority opinions.

Takings Clause of the Fifth Amendment Was at the Center of the Case

I teach survey courses in constitutional law in our Legal Studies program, and recently I also have begun to teach a course in property law. One of the first places these two fields of law intersect is the Fifth Amendment (that is applicable to states also through the Fourteenth Amendment). The Takings Clause of the Fifth Amendment provides: “[N]or shall private property be taken for public use, without just compensation.”

The clause was at the center of the case, questioning the constitutionality of the California regulation.

As noted earlier, the regulation mandates that agricultural employers allow union organizers onto their property for a prescribed amount of time each year. The organizers must inform the owners of their intent, but the latter cannot simply refuse access.

Two farm owners (Cedar Point Nursery and Fowler Packing Co.) challenged this rule, stating such legislation involves the taking of property. The rule allows people to enter private property; that the time is limited does not change the fact that it limits owners’ property rights.

The Majority Was Clear that the California Regulation Was a Form of Government Taking

The majority opinion was written by Chief Justice John Roberts. He was joined by Associate Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

These conservative judges were clear in their view that the California regulation was a form of government taking. The ability to exclude someone from a property is a core element of property rights. The California regulation limited the ability to exclude the union organizers and was a per se taking.

As Roberts wrote for the majority: “Given the central importance to property ownership of the right to exclude, it comes as little surprise that the Court has long treated government-authorized physical invasions as takings requiring just compensation. The Court has often described the property interest taken as a servitude or an easement.”

This opinion captures two elements of the conservative majority. First is the obvious importance it puts on individual autonomy and personal liberties. The court was not convinced that a non-permanent taking of the right to exclude is not a taking of property. The majority sent a clear message as to its hierarchy of values.

Second, the majority does not see public policy issues in the same way liberal courts do. The Supreme Court sees nothing wrong with union organizing, but does not see it as a reason to infringe on property rights.

But why should anyone disagree? Why would union organizers be allowed to enter property that is not theirs?

The issue here has to do with public policy. Farm workers usually have limited access to information and resources as well as the more direct opportunity for assistance in organizing on the work site.

The Minority Rejected the Notion that the California Regulation Was a Taking

The minority opinion was written by Associate Justice Stephen Breyer, joined by Associate Justices Sonia Sotomayor and Elena Kagan. They rejected the notion that the California rule constituted a taking. They asked the readers to think of the plain English meaning of the word taking, averring that temporary access to the farmland did not rise to the level of a taking.

“It is important to understand, however, that, technically speaking, the majority is wrong,” Breyer wrote for the minority. “The regulation does not appropriate anything. It does not take from the owners a right to invade (whatever that might mean). It does not give the union organizations the right to exclude anyone. It does not give the government the right to exclude anyone.

“What does it do? It gives union organizers the right temporarily to invade a portion of the property owners’ land. It thereby limits the landowners’ right to exclude certain others. The regulation regulates (but does not appropriate) the owners’ right to exclude.

“Why is it important to understand this technical point? Because only then can we understand the issue before us. That issue is whether a regulation that temporarily limits an owner’s right to exclude others from property automatically amounts to a Fifth Amendment taking. Under our cases, it does not.”

The minority opinion might have focused on formalism and a definition of terms, but it has a solid foundation in the realm of policy, voicing the value it sees in labor organizing. The ideological divide between the minority and the majority is clear.

The AFL-CIO was quick to lament the majority ruling. It is clear that this was indeed a decision that symbolizes the deep change in the Supreme Court after the Trump era. The clear conservative majority that will remain, most likely for many decades, is shaping the legal landscape of the U.S. for years to come, and this is just the beginning.

Dr. llan Fuchs is a scholar of international law and legal history. He holds a B.A. in Humanities and Social Science from The Open University of Israel and an M.A. in Jewish history from Bar-Ilan University. Ilan’s other degrees include an LL.B., LL.M. and a Ph.D. in Law from Bar-Ilan University. He is the author of “Jewish Women’s Torah Study: Orthodox Education and Modernity,” and 18 articles in leading scholarly journals. Ilan teaches courses on international law and other law related topics while maintaining a law practice in several jurisdictions.

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