Posted by Ilya Somin:
What the Didden Case Tells Us About Sotomayor's Attitude Towards Property
Rights:
http://volokh.com/archives/archive_2009_06_14-2009_06_20.shtml#1245113908
In today's New York Times, leading legal reporter Adam Liptak has
[1]an informative article about Sonia Sotomayor's dubious property
rights decision in Didden v. Village of Port Chester, which I
previously criticized [2]here and [3]here. In Didden, a court of
appeals panel headed by Sotomayor upheld the condemnation of two
businessmen's property because they refused a politically connected
developer's demand to either pay him $800,000 or allow him a 50% stake
in their business.
Liptak does a good job of summarizing the case and its importance,
though some legal details have inevitably been omitted. I was slightly
surprised to see the article draw an apparent contrast between my view
of Didden's significance and that of Richard Epstein, the leading
University of Chicago and NYU lawprof with whom I coauthored [4]an
amicus brief urging the Supreme Court to reverse Sotomayor's decision
in the case:
�This is the worst federal court takings decision since Kelo,� said
Ilya Somin, who teaches property law at George Mason University and
helped write the brief. �It�s very extreme, and it is significant
as a window into Judge Sotomayor�s attitudes toward private
property.�
But another author of the brief, Richard A. Epstein, said the
decision in Mr. Didden�s case was a rare misfire that provided no
larger insights into Judge Sotomayor�s thinking.
�It�s a disappointment and it�s wrong and it�s ill thought out,�
Professor Epstein, a law professor at the University of Chicago and
New York University, said of the ruling. �But it�s not one of six.
It�s one of two.� (The other poorly handled decision, he said, was
Ricci v. DeStefano, which rejected employment discrimination claims
from white firefighters in New Haven.)
If this is indeed Epstein's view, it is somewhat in tension with[5]
his previous statement that "American business should shudder in its
boots if Judge Sotomayor takes the attitude [reflected in her Didden
opinion] to the Supreme Court." As he explained in the earlier op ed
and I discussed here, Didden is striking because it goes even further
than Kelo v. City of New London in allowing private property to be
condemned for the purpose of enriching other private parties. As
Epstein points out, Sotomayor dismissed the issue with a cursory
statement, suggesting that she didn't even think it was a close case.
Perhaps Epstein merely meant to say that Sotomayor had made "only" two
egregiously bad decisions in important cases (Didden and Ricci v.
DeStefano, effectively criticized in [6]this series of posts by
co-conspirator Jonathan Adler), and that these two gross errors don't
reflect her overall record. I certainly agree that Sotomayor's
performance in most cases was far better than in these two.
Nonetheless, I think these two cases are telling precisely because
they are unusual. As Barack Obama [7]famously pointed out, "while
adherence to legal precedent and rules of statutory or constitutional
construction will dispose of 95 percent of the cases that come before
a court, so that both a Scalia and a Ginsburg will arrive at the same
place most of the time on those 95 percent of the cases -- what
matters on the Supreme Court is those 5 percent of cases that are
truly difficult." Didden and Ricci are part of Obama's 5 percent -
really important precedent-setting cases on disputed issues. As Obama
emphasizes, a judge's performance in these types of cases is
particularly important in determining her fitness for the Supreme
Court. Sotomayor simply hasn't handled very many important
constitutional cases, so we must carefully consider the few that she
has.
Indeed, Didden is probably even more telling than that because it was
somewhat easier than most cases in the 5 percent. It was [8]precisely
the kind of "pretextual" taking that even the Kelo majority considered
to be unconstitutional. It is extremely revealing that Sotomayor not
only got the outcome wrong, but seemed to think it wasn't even a close
call. If Sotomayor didn't believe that there was a serious property
rights issue even in this extreme case, it is unlikely that she would
protect property rights under the Takings Clause in any other
situations likely to come before the Supreme Court.
UPDATE: Although less important, in my view, than Didden and Ricci,
it's also worth noting that Sotomayor made another dubious
constitutional ruling in of [9]Doninger v. Niehof, an important free
speech case where she upheld a public school's decision to punish a
student for speech that occurred entirely outside of school grounds. I
briefly discussed Doninger in the first part of my [10]LA Times debate
with Erwin Chemerinsky. Liberal legal scholars [11]Jonathan Turley and
[12]Paul Levinson have been even more critical of Sotomayor's Doninger
opinion than I was.
References
1.
http://www.nytimes.com/2009/06/15/us/15taking.html?_r=2&scp=1&sq=ilya%20somin&st=cse
2. http://www.volokh.com/posts/1243364120.shtml
3. http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1243972122
4.
http://www.ij.org/images/pdf_folder/private_property/didden/Professor-amicus-on-petition-for-cert.PDF
5.
http://www.forbes.com/2009/05/26/supreme-court-nomination-obama-opinions-columnists-sonia-sotomayor.html
6. http://volokh.com/posts/chain_1244327574.shtml
7.
http://obamaspeeches.com/031-Confirmation-of-Judge-John-Roberts-Obama-Speech.htm
8. http://www.volokh.com/posts/1243364120.shtml
9. http://mirandamagazine.com/joomla/images/aver4.pdf
10.
http://www.latimes.com/news/opinion/opinionla/la-oew-chemerinsky-somin27-2009may27,0,4134639.story
11.
http://jonathanturley.org/2008/05/30/second-circuit-upholds-punishment-of-high-school-student-for-out-of-school-web-entry/
12.
http://open.salon.com/blog/paul_levinson/2009/05/02/sotomayors_bad_1st_amendment_decision_should_disqualify_her
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