Instead, it is a prime example of what CAC calls “fauxriginalism”-the practice of claiming the mantle of originalism in judicial opinions and legal arguments without faithfully engaging with what the text and history of the whole Constitution actually show.
To be clear, the majority’s opinion-which invoked “he Founders” while casually sweeping aside their understanding of the Takings Clause -was not originalist. Indeed, while Justice Brett Kavanaugh’s concurrence lauded the majority opinion for “carefully adher to constitutional text, history, and precedent,” the majority in fact adhered to none of the three. Supreme Court disagreed in an opinion that continued a decades-long conservative project to rewrite the meaning of the Takings Clause. Court of Appeals for the Ninth Circuit had rejected a claim by two agricultural corporations that the regulation amounted to a per se physical taking of property, or an appropriation of property requiring compensation under the Fifth Amendment’s Takings Clause, the majority of the U.S.
Hassid, which involved a challenge to a California regulation that granted labor organizers limited access to private farmland to solicit union support. As our colleague Brian Frazelle, senior appellate counsel at the Constitutional Accountability Center (CAC), has pointed out, corporate America won “the vast majority of its cases, consistently reversing lower-court wins for plaintiffs or the government.” One of those lower-court reversals was in Cedar Point Nursery v. Zolle Ĭorporate America has been remarkably successful under the Roberts Court, and this past Term proved no exception. Hassid and Judicial Expansion of the Takings Clauseīrianne J.
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