Since Justice Scalia’s passing, the Court’s best writers are Chief Justice Roberts and Justice Kagan. Roberts is at his best in a non-ideological case where he doesn’t need to conserve votes or achieve some artificial result. (Roberts discussion on Wonder Bread today in 9-0 Bisonnette the case was delightful). Kagan is at his best when he expresses himself sarcastically as a sign of dissent. He spares no one. After the two-way tie between Roberts and Kagan, I think Judge Barrett moved up to third place. I always find his writing delightful, insightful and clean. Furthermore he has the virtue of writing faster. I haven’t crunched the numbers, but it seems like his opinions consistently emerge shortly after oral argument, which means it circulates quickly and there are few revisions to be made.
Judge Barrett’s opinion today Sheetz v. El Dorado County it was golden. I particularly appreciated this brief summary of the Court’s hiring clause jurisprudence:
The right to fair compensation under the Takings Clause coexists with the police power of states to engage in land use planning. (Though sometimes the two seem more like in-laws than soul mates.) Although states have substantial authority to regulate land use, see Village of Euclid v. Amber Realty Co., 272 US 365 (1926), right to compensation kicks in if “physically appropriates”[e]” property or otherwise interfere with the owner’s right to exclude others from it, Cedar Point Nursery v. Hassid, 594 US 139, 149–152 (2021). This type of intrusion into property rights is itself a taking Loretto v. Teleprompter Manhattan CATV Corp., 458 US 419, 426 (1982). Different rules apply to state laws that simply limit how land is used. A restriction on use that is “reasonably necessary for the “pursuance of a substantial governmental purpose” is not an appropriation unless it excessively undermines the value of the property or frustrates the owner’s investment expectations. Penn Central Transp. Co. v. New York City, 438 US 104, 123, 127 (1978); see also Lucas v. South Carolina Coastal Council, 505 US 1003, 1016 (1992) (“[T]The Fifth Amendment is violated when land use regulation does not substantially advance the legitimate interests of the State or denies the owner economically viable use of his land” (internal quotation marks omitted).
I wonder what Judge Barrett thinks of her soulmate and her in-laws. And, as often happens, with the soul mate comes the in-laws. Like love and marriage, you can’t have one without the other. Although the hippies closest to Justice Scalia would disagree.
Judge Barrett also uses another hypothesis that probably comes from real-world experience, kind of like the babysitting theme park hypo:
The government has the right to give the landowner the choice of accepting the agreement or abandoning the proposed development. See R. Epstein, Bargaining With the State 188 (1993). The agreement takes on a different character when the government refuses or conditions a building permit for reasons unrelated to its land use interests. Imagine a local planning commission denying the owner of a vacant lot a building permit unless she allows the commission to host her annual party in her yard (in property terms, granting her a limited-access easement). The landowner “will probably accept the government’s request, no matter how unreasonable”, as long as he values the building permit more. Koontz, 570 U.S., at 605. The same is true if the commission gives the landowner the option of financing the party at a local pub instead of hosting it on his land. See id., 612–615. Since such conditions do not have a sufficient connection with a legitimate interest in land use, they amount to “a real extortion plan”. Nollan, 483 US, at 837 (internal quotation marks omitted). Our decisions in the Nollan and Dolan cases address this potential abuse of the permitting process. There, we presented a two-part test modeled on the unconstitutional conditions doctrine.
The Court’s decision was unanimous: the Zero/Dolan the test applies if the condition is imposed by legislation. The Court found that “nothing in the constitutional text, history, or precedent supports exempting legislatures from ordinary takings rules.” The rest of the majority opinion is a brief summary of how the Takings Clause has worked for centuries. Students learning about the Takings Clause can scroll through this analysis for a quick overview.
There are three separate writings. Justice Sotomayor, joined by Justice Jackson, pointed out that the Court has not decided “whether the permit condition would be a compensable taking if imposed outside the permit context.” In other words, the Court left open the question of whether the Zero/Dolan The test should apply to rates imposed on a “class of property” in the same way as it applies to a “particular development”. Justice Gorsuch, in a separate concurrence, said that there is no difference and that both types of regulations should be countervailable.
Judge Kavanaugh, joined by Judge Kagan, does what he always does: he goes out of his way to address issues that are not present in the case. Specifically, as Judge Kavanaugh often does, he explains that what has been done before can continue to be done:
It is important to emphasize, therefore, that today’s decision does not address or prohibit the common practice of government enforcement authorization conditions, such as impact feeson new developments through reasonable formulas or programs that evaluate the impact of developmental classes rather than the impact of specific parcels of property. Moreover, as is clear from the fact that today’s decision expressly leaves the question open, no previous decision of this Court has addressed or prohibited this now consolidated government practice. Both Nollan and Dolan considered permitting conditions tailored to specific parcels of property. See Dolan v. City of Tigard, 512 US 374, 379–381, 393 (1994); Nollan v. California Coastal Comm’n, 483 US 825, 828–829 (1987). These decisions had no opportunity to be addressed permit conditions, such as impact feeswhich are imposed on applicants for authorization on the basis of reasonable formulas or programs that evaluate the impact of developmental classes.
I am often struck by how often Judge Kavanaugh repeats himself. He will often ask the same question, almost verbatim, during the oral argument. And they aren’t real questions. They are statements indicating how he will vote and he simply asks the lawyers if they agree with him. Or, if a lawyer says something unexpected, Kavanaugh tries to make sure they’re still on the same page.
Likewise, Judge Kavanaugh’s opinions are remarkably repetitive. In a concurrent one paragraph, he manages to repeat two key phrases verbatim: “permit conditions, such as impact fees” and “reasonable formulas or programs that evaluate the impact of development classes.” Without saying so, Kavanuagh signaled that these “common governance practices” are fine. I imagine these types of land use issues would be presented to the Chevy Chase City Council or Montgomery’s Zoning and Code Compliance Division.
Going forward, every single lower court judge will still cite Kavanaugh on “impact fees” and determine whether the formal or schedule is “reasonable.” Judge Kavanaugh, without saying so, stepped in to decide a huge question that was not present here. He really can’t resist doing it.