Testing The Current Court

The worst “hangover” from four years of Trump is undoubtedly the composition of the country’s federal courts–including but not limited to the Supreme Court. Granted, Trump–who wouldn’t know a legal principle if he fell over one–wouldn’t have known how to stuff the courts with rightwing ideologues; Mitch McConnell is the villain. But Trump enabled him.

In a recent column for the New York Times, Linda Greenhouse explained the troubling implications–and predictive value– of an upcoming Supreme Court case.

The case that the Supreme Court heard this week about a California law granting union organizers access to private farms has been described as a labor case, which it marginally is. It has also been described as a case about property rights, which it definitely is. But what makes Cedar Point Nursery v. Hassid one of the most important cases of the current term is the question it presents for the newly configured court: whether, after years of disappointment, the political right may finally be able to take the Supreme Court for granted.

The case is being brought by the Pacific Legal Foundation, and as Greenhouse reports, Pacific group is using Cedar Point–a company that grows strawberries– and another employer that packs and ships citrus fruit and grapes, as “stalking horses for its long-running project to elevate property rights.”

The case involved union access to agricultural workers. The California law being challenged had been passed during Cesar Chavez’s drive to organize the state’s farmworkers. It limited the ability of the union to approach workers in the field to periods before and after the working day and to three hours on 120 days of a year.

Greenhouse focused in on an illuminating–and to lawyers, startling–exchange between the lawyer and Justice Kavanaugh. Kavanaugh referred to a 1956 case that balanced employers’ property rights agains union organizing rights, and noted that–under that test–Pacific would “prevail”–it would win its case. The lawyer for Pacific “rejected out of hand” that potential path to victory.

Pacific isn’t interested in just winning its case. It wants to change the law.

The Pacific Legal Foundation doesn’t want a balancing test. It wants a categorical rule — referred to throughout the argument as a “per se rule” — that any entry by a union onto private land, if authorized by the state, is a “taking” of private property in violation of the Fifth Amendment’s Takings Clause (“nor shall private property by taken for public use, without just compensation”). Any entry at all.

So let me ask you this,” Justice Amy Coney Barrett said to Mr. Thompson. “What if California had a regulation that permitted union organizers to go onto the property of your clients one hour a day, one day a year. Is that a taking subject to the per se rule?”

Yes, the lawyer replied.

Barrett clerked for former Justice Scalia, who championed an expansion of the categories of government action that count as a “taking.”  The Fifth Amendment requires government to compensate property owners for takings, and there has long been an effort to turn regulations–especially environmental regulations–into compensable takings subject to that Amendment.

If you have a wetland on your property and regulations impede your ability to develop it, for example, the government would have to “compensate” you.

Until a 1992 case, Lucas v. South Carolina,  courts had defined takings as the physical occupation of private property, usually via eminent domain.

Government actions that didn’t “take” private property in the literal sense, but simply limited its use in certain ways, were regarded as “regulatory takings,” with the private and governmental interests being weighed against one another to determine whether compensation was required…

When a regulation “declares ‘off-limits’ all economically productive or beneficial uses of land,” Justice Scalia wrote for the court, “compensation must be paid to sustain it.”

Ever since, the Pacific Legal Foundation has argued for the adoption of what Scalia called a “categorical” taking.

That was the war that resumed at the Supreme Court this week, and that history explains why, from the Pacific Legal Foundation’s point of view, anything short of total victory is beside the point.

Greenhouse notes that whether the court buys Pacific’s theory will tell us a great deal about the success of McConnell’s effort to refashion the courts.


  1. The Supreme Court was already anti-worker and pro-authoritarian businesses before Amy Coney Barrett was appointed. Workers – fasten your seat belts.

  2. Yes, Nancy, the working class will be screwed by the SCOTUS for years to come. But so will voters of color. Watch for the Republicans on courts at all levels to allow state’s rights to form and enforce their obviously racist voting policies. Governor Cracker in Georgia is the newest middle finger salute to the Constitution. It is just the beginning of the right’s wet dream: Fascism coupled with Todd’s favorite word, Oligarchy. Once those bastards control who can vote, the game is over.

    I’m glad I’m old.

  3. Nancy, and Vernon,

    Firstly, this isn’t even close to one of the major issues here!

    Secondly, even though I feel really good for the most part, I am not glad I’m getting older or in being old, LOL! I digress!

    It’s just another step to eliminate wealthy corporations from having to pay taxes!

    The per se rule, or, one could call past practice if they win the case, or, it would be used as a precedent case, then you’re screwed.

    “taking” of private property in violation of the Fifth Amendment’s Takings Clause (“nor shall private property by taken for public use, without just compensation”).

    Fifth Amendment; ” No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

    I can’t see how you can equate union organizing with the Fifth Amendment in any way shape or form. Because, if you can do that, you can basically claim as it is alluded to in not so many words in Sheila’s thread, financial profits and the right of government to tax those profits, could be eliminated using this lawsuit eventually. Because earned monies could be considered private property and the reallocating of that money to the public sphere through taxation would be an infringement on any company or corporations Fifth Amendment rights! That’s where this is going, and eventually, the only ones to be taxed would be the average working class citizen.

    This in itself would effectively dismantle government! This would destroy the United States of America as we know it. There is no way, that a burden of this magnitude, could be shouldered by citizens of any civil society! The collapse of that society would definitely be at hand.

    I digress for a moment, Interestingly, the Fifth Amendment describes the militia, and, it refers to the militia as being in service of the government! Kind of going along with yesterday’s thread. Gun ownership Et al!

    Back to today’s thought; So, I would have to say that the executive branch would have to use its power to declare martial law unilaterally. During that time, the Supreme Court can be dismantled, appointed judgeships can be examined for qualifications, and new appointments made if needed. Let’s face it, the GOP has completely outflanked the Democrats on every battleground. And, if one can’t use the absolute power and was shown by the GOP can be done, we will be sitting in a Third World tinpot, split up amongst the wealthy oligarchs, who, might magnanimously throw some crumbs in the general public’s direction. The hand is writing on the wall, the interpretation is simple, this is an inflection point, the Biden presidency is an inflection point, maybe the last liberals will get ever.

    Maybe a less severe possibility would be getting rid of the filibuster! But the courts will continue to be a problem! Who could’ve thunk it? In the future right now could/would be considered the good old days?!?.

  4. I had seen some of the discussion on the nuances of this case, and it is obvious Pacific and Cedar Point Nursery are trying to set what would seem a dangerous precedent. If a private property owner can keep anybody off their property by claiming they are “taking”, then would allowing an OSHA inspector, fire Marshall, or tax assessor onto the property require compensation?

    I don’t think these guys are going to get the result they want, but who knows what mental gymnastics a strongly right wing court my try to justify some idiotic point.

  5. Would this decision, if upheld, mean that EPA would have to compensate any business that was being inspected for pollution violations? Would the USDA have to compensate meat processing plant owners when they are certifying that the produces are safe? How about the FDA and drug manufacturers? Would the public health departments have to compensate restaurants, rental property and privately owner dwellings when inspecting them for hazards to public health? Would fire departments have to compensate owners of structures that were on fire for “taking” their property when fighting a fire? Where does this stop? Capitalism and individualism run amok will be the destruction of the common good as a real driver of prosperity in this country, IMO.

  6. John, your optimism is both stunning and inspiring. Too bad you’re not on some high court.

    Instead we have cretins like Thomas, Alito and Kavanaugh.

  7. Don’t forget; we have Bezos hiring ex-IC officials and using face recognition software to spy on its employees to prevent union organization in its plants and warehouses. The oligarchs know unions are an obvious balancing point to wealth and income inequality. One of the issues with this is union leadership has been just as corrupt as our political leadership. Many of our unions sold out their members along with the DNC. Randi Weingarten is a great example.

    Not sure who wrote this above, “Let’s face it, the GOP has completely outflanked the Democrats on every battleground,” but you are giving the GOP too much credit. Think Dianne Feinstein fawning over Lindsey Graham after the #ACB hearing. There is no opposition party in Washington or the USA. Two sides of the same capitalist coin owned by the oligarchy.

    Those theorizing that private property owners ultimately want to refuse regulators or tax assessors from entering their property are most likely correct. This current case is just a stepping stone. #ACB and crowd know the plan already and have already been advised by lawyers and academics within the Federalist Society.

    If Scalia can abandon voter’s rights legislation because there is no voter suppression and declare corporate personhood with freedom of speech and equate speech with donations, then there is no limit to what these shills will pursue. There was a comment last week that SCOTUS is an independent government entity — that position is hilarious. The courts have been packed to protect the oligarchy because they know what’s coming.

    The socialists have been recommending independent worker committees on a global scale to combat the Davos crowd that runs our IC, government, police, courts, etc. They know the IC is preparing for the counter-insurgency as a result of the oppression forthcoming. The US isn’t the only right-wing capitalist government controlled by the oligarchy.

    By the way, did you see where China and Iran just signed a long-term agreement. To say that is huge would be a massive understatement.

  8. JD, Vernon, and Mitch;

    This seemingly innocuous case, can truly be the most dangerous slippery slope that actually looks like will happen.

    I’ve always found it hard to comprehend how there is such a large portion of the citizenry albeit a large minority portion, which will actually build the gallows for their executioner! The level of hatred is so deeply ingrained in being, in their DNA, that they are blinded to the realities of what is happening.

    They are just like the sheep that follow the Judas goat right to the slaughterhouse! They willingly follow that goat, and as a reward, the goat is set free! But at least we have ample supplies of leg of lamb in the stores and sheepskin gloves!

    If I’m not mistaken, that’s where the old saying comes from, “like leading a lamb to the slaughter” ?

    And JD, this per se, past practice, or president setting case, whichever you want to call it, can be interpreted to accomplish almost anything! It’s a carte blanche case, which goes along with what you said what Vernon said and what I said! Anyway you look at it, it’s not good.

    Somewhere down the line this is going to end up bloody, I said that before and I still mean it today. This just reinforces that fact. The GOP has shown how one can use the absolute power of the Executive, and, it should be used here, as they would absolutely use it themselves, if it would serve their purpose.

  9. Todd,

    Can’t argue with you on your points of contention, but, as they say, you have to deal with the devil you know. Which devil will cause the least amount of damnation, lol! I don’t think it’s a hard choice to make.

  10. Nancy and Vernon
    I never thought I would hear myself say I am glad I am old, but I am saying it. The southern white men cannot accept that they are becoming the minority in this country. The truth of the matter is that at one time, their ancestors were immigrants. I have been trying to think up an appropriate new name for the country, because United States is the biggest misnomer.
    The former president was never smart enough to be anything but a puppet of Putin and McConnell. He/they have set in motion the foundation for another civil war in this country. Again, I am glad to say I am old. Hopefully wont be around to see the ruins.

  11. Donziger was in The Guardian today. It reminds me of the Julian Assange case, including the connection to the now US meddling in Ecuador’s election.

    “This deception, the unprecedented length of detention for a misdemeanor charge, legal disbarment and personal financial wipeout has fueled a sense of persecution in Donziger. Kaplan’s conduct, Donziger said, has been an “abomination, unethical and abusive. I never thought this could happen in the US.” Other lawyers have voiced more measured concerns over Kaplan. Chevron has “captured” the judge, Donziger said, and now the oil company seems omnipresent in his fate.

    His contempt charge will be heard by Judge Loretta Preska, who was on the advisory board of the New York chapter of the Federalist Society, who took the unusual step of appointing a law firm that has previously done work for Chevron, Seward & Kissel, to prosecute Donziger after the department of justice declined to take the case. “Why am I being tried by a Chevron-connected judge and prosecuted by a Chevron-connected lawyer? It’s just wrong,” Donziger said. “This is all part of a plan concocted by Chevron to dismantle my life. They want to do this to avoid paying up and to turn me into a weapon of intimidation against the whole legal profession.”

    Tom Strong, we have been toppling foreign governments for decades for the sake of the oligarchy. Chevron was behind our attempted coup in Venezuela as well as Ecuador. They probably were behind our endeavors in the Middle East.

    They want to go to war with nuclear-armed China for interfering in their global interests. I think we are well beyond stripping the government from its clutches. It’s Fascism that speaks about democracy which is echoed by its public relations department known as our corporate news media.

  12. At the most fundamental level cases like this strike me as related to slavery in that they elevate what is obtained by wealth as freed from service to humankind and subject exclusively to the whims of the owner. It took a civil war to deny that applies to other humans. As the human population heads further past numbers and lifestyles that the planet can provide sufficient resources to sustain and only limited ability to digest the waste from, the question expands beyond the ownership of other humans to what is necessary to provide for all of them. When the Civil War was fought the only limited production means that sustained the South was labor. In the future, all productive land will become equally limited.

  13. In order to get a pre-“taking” fix on the issue not treated by the exhortations of critics today, let’s look at “property rights” from earlier times. American Indians were perplexed and did not understand the use of barbed wire by English invaders (who were themselves victims of the “Enclosure Movement” back home). American Indians considered real estate to be treated as the air and water, free for all to use, and not subject to independent dominion. Then came barbed wire, common law definitions of trespass etc.

    I don’t know of any way to defend the idea of “taking” aside from the context in which it is to be observed, and there was no Indian common law on the topic other than the rights established by certain tribes to roam within certain borders, the Indian equivalent of the white man’s barbed wire subdivisions sans the wire.

    So here we are – making unionization efforts an issue on the theory that such efforts on the property of the owner(s) to be unionized amount to a an uncompensated taking. So what’s next? Is the presence of workers on such property a taking that the employer-owner may deduct from their wages? Where does this legal fantasy end, or as some say, it has already ended in favor of the anti-union sentiment of a Federalist Society court system devoted to a still developing admixture of capitalism and religion?

    It will be interesting to read the dissents to the likely holding of the court in this appeal, if any.

  14. Two quick thoughts –
    Compensation for “taking” for inspectors, assessors, and union organizers – just compensation set at 1 cent per 10,000 hours or trespass, payable upon reaching 5,000 hours within one year’s time.

    As a citizen, I demand that private citizens compensate us for the use and/or destruction of public assets (land, air, water, climate) – destroying a wetland – $10 billion per instance.

    My two simple demands once the court rules against workers – again. Since private property is not only the highest moral good, but the only one, according to the court, I feel that they need to properly assess the value of this private property.

  15. It seems if an employer brings workers onto their land to work, the workers don’t leave their rights at the property line. My daughter worked as a migrant farm inspector one summer, and reported to the Fed. any violations she found. Housing, hours of work & pay were issues she watched for.
    Does the property owner have the right to keep union officials, and Federal inspectors off they’re property? If they do that then workers would be subject to the owners self interest only, which could lead to abuse.

  16. Sometimes all you all’s thoughts and comments and explanations and illuminations cheer me up so much I just can’t stand it….

  17. Kathy – It seems not to be about whether one has such rights but rather where they may be freely exercised, and if farm interests succeed before the court one may reasonably expect other such interests to employ the same logic in preventing unionization of their work force(s).

    Perhaps future appeals of this nature will note that the right to organize and collectively bargain for wages and working conditions is one of those rights not surrendered when one goes to work. Perhaps. It would be great if we had a new Wagner Act that specifically overruled what I expect the coming holding to resemble, specifically, the right to collectively bargain along with the necessary rights in the exercise of such right and a redefinition of taking in connection thereof.

  18. “If you have a wetland on your property and regulations impede your ability to develop it, for example, the government would have to “compensate” you.”

    I’m sorry, but if government changes the rules after you acquire real estate, limiting it’s possible use and, thus, its value, then, yes, absolutely government should compensate you. I can’t believe anyone would be against this.

  19. Paul – Zoning is illegally applied to land acquired before the zoning ordinances were enacted? Planning commissions are “taking” when they deny proposed housing on land full of potholes? Shall we O.K. the siting of a slaughterhouse next to a school or church? Are we going to entrust the “highest and best use” of real estate to the owners thereof in derogation of the rights of contiguous property owners? I disagree with you and your approach. Property holders have not only rights associated with holding title to land; they also have obligations in such connection.

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