Balkinization  

Wednesday, April 28, 2010

The Supreme Court Term and the Coming Confirmation Process

Rick Pildes

[Cross-posted from The Federalist Society Online Debate Series]

By the end of June, the Supreme Court Term might well look like this: the Court will have held unconstitutional Congress' attempt to limit corporate and union electioneering spending. By the same 5-4 majority, the Court might have held unconstitutional Congress' response to the last financial crisis, the Sarbanes-Oxley Act, enacted in the wake of the Enron, WorldCom, and similar corporate scandals of the late 1990s-early 2000s (Full disclosure: I represent seven former Chairmen of the SEC in this case, who are arguing in favor of the constitutionality of the Act). And the Court might have held unconstitutional the criminal conviction of the man who more than anyone else, is the most visible face of those corporate scandals: Jeffrey Skilling, the former President of Enron. Think about that picture: Congress' effort to legislate in the wake of the last corporate scandal, unconstitutional. The conviction of Enron's head, unconstitutional. Congress' effort to rein in corporate participation in elections, unconstitutional. All this as the country roils with the aftermath of the worst financial crisis since the Great Depression, including angry debates about whether entities like Goldman Sachs committed fraud or engaged in unethical behavior in ways that contributed to the financial meltdown.

At the start of the Court's Term, I suggested that how the Court implicitly responded to the financial crisis would be the defining issue for the Court this year. And if the picture I've sketched is indeed how the Court's Term concludes, that issue is going to come home to the Court with a vengeance. The Court will be swept into a maelstrom of controversy centered on perhaps the largest domestic issue of our times: how much power does or should government have to regulate corporate behavior. To some extent, this reaction to the Court will quickly move beyond what's actually involved in some of these cases. If the Court overturns Skilling's conviction, for example, the Court might do so as part of a series of cases that hold the "honest services" statute unconstitutionally vague; and that statute has been used more to prosecute government officials than corporate executives. But coverage of the Court, from both academics and the media, has become as polarized and unnuanced as everything else in our hyperpolarized political culture. The fury Congress is currently directing to Goldman Sachs will turn to the Court.

There will be a ready stage on which to present this drama: the confirmation process. Not only will the focus shift from the cultural issues that have dominated hearings in recent decades to economic ones, but Congress will have a much more direct stake in the issues. Unlike the cultural issues, where the Court is typically confronting state laws, here the Court would be holding unconstitutional national statutes involving Congress' regulation of the national economy. Will the anticipation of this drama, already foreshadowed in the reaction to the Court's Citizens United decision, influence who gets nominated to the Court? I have thoughts on that, for another post, but I wonder what others might think about the effect on the Court and the confirmation process of this looming drama.

Comments:

Is this the rebirth of The Gilded Age - or perhaps The Gelded Age of Congress? Or examples of The Golden Rule?
 

Nominating former Goldman board member Elena Kagan would add more spice to the mix.
 

Didn't Skilling DIE? How much more "pound of flesh" do you want?
 

Are you referring to the Peekaboo case? If so, wouldn't it be extremely misleading to characterize that case as relating to the constitutionality of Sarbanes-Oxley? As I understand it, the case doesn't have anything to do with the government's authority to regulate, just with how the board is appointed.

I also wonder whether the Court will split in either this case or the honest services case along the conservative-liberal line that would help push the narrative you are suggesting (it may, but it strikes me that neither case would necessarily lend itself to such a division).

Perhaps we will see a surge of "coffee party" protesters outraged at the application of the vagueness doctrine and the Appointments Clause. I wouldn't bet on it, though.
 

Skilling is very much alive, Charles, although your outrage is duly noted. Perhaps you are thinking of Ken Lay, another martyr to the liberal agenda of criminalizing criminal conduct.
 

Not only will they be freeing Skilling, they'll be allowing juveniles to be sentenced to life without parole. And they'll be giving the owners of beachfront cottages the sand that states drag in to counteract erosion.
 

You mean, as opposed to giving the government the right to convert a beachfront home into an inland home without any compensation, any time it feels like dumping some fill dirt?
 

Brett:

You mean, as opposed to giving the government the right to convert a beachfront home into an inland home without any compensation, any time it feels like dumping some fill dirt?

How about converting a beachfront home to a EPA Super Fund site any time it feels like dumping a few toxic petrochemicals?

Cheers,
 

You mean, as opposed to giving the government the right to convert a beachfront home into an inland home without any compensation, any time it feels like dumping some fill dirt?
# posted by Brett : 12:23 PM


Brett, do you have any examples of this? Usually the government only starts filling beaches when the beachfront home owners start screaming because their houses are about to be washed out to sea.

In any case, if you want to get some beachfront property, you can probably buy it real cheap on the Gulf coast right now.
 

Oil-soaked college students frolicking in the surf at Panama City -- oh, the humanity.
 

Bartbuster, I assume R Friedman was referring to this case. Which is indeed about some beachfront property owners who are objecting to the state nourishing their beaches, because the state is going to claim ownership of the new beach, leaving the former beachfront owners in possession of inland property without compensation.

Just because beach nourishment normally occurs at the request of the property owner, doesn't mean it *always* does. Sometimes people would rather have a short private beach in front of their home, instead of a deep public beach.
 

Brett, I'd be fine with stopping beach replenishment completely. More than likely the wealthy people that you're defending would rather take their chances with losing their private beach than watch their house float out to sea.

By the way, the people you are defending would shit on you without even noticing that you are there. I have no idea why you care about them keeping their soon to be oil soaked private beach.
 

Yes, I'm aware that the first question you always ask, before deciding whether somebody's constitutional rights should be respected, is "Do I like them?". And if the answer is "no", you're fine with their rights being violated. I, on the other hand, am something of a civil libertarian, and want the rights of even people who wouldn't invite me to their parties to be respected.
 

Sorry, Brett, you are right. My first question should have been:

When did ownership of beachfront property become a Constitutional right?
 

December 15th, 1791. But, of course, I suspect you knew that.

It's not a right to beachfront property, but if you DO happen to own beachfront property, it's damned well a right not to have it taken away from you without compensation.
 

When was the property taken away?
 

The landowners would not lose one square inch of their property as a result of the renourishment. Not one square inch. The Constitution refers to a "taking" of property, period. Brett is always happy to insert new words into the Constitution when it suits his preferences, while in other instances he gets outraged that anyone would disregard the document's plain language. Not one square inch is being taken.

There is no concept of a natural right to insist that your property continue to contact the water. If government chooses to recognize contact with the water as a property interest, then that's great, but otherwise it doesn't look like any definition of property that I know. In fact, the landowners' only argument before the Supreme Court is that because the Florida courts once decided a case the opposite way, the Constitution forbids them from changing their minds.

If Florida hadn't had that earlier judicial decision, the landowners wouldn't have even the shadow of a claim, so Brett's notion that we all have some inherent constitutional right not to have sand restored to our beachfront property in such a way that the shoreline moves off our property is simply the Constitution According to Brett, a familiar concept to inhabitants of this comment section.
 

Oh, come on! The property line, if you look up the description in the plat book, undoubtedly is defined as reaching to the water line. That's the usual practice on the shore of a body of water. If the beach had expanded naturally, there's no question AT ALL that the property would continue to reach to the water. They're actually going to have to re-write the property description to strip the owner of ownership right up to the high tide line. That's not a taking?
 

Brett, if we were talking about a natural process, their property would be washed out to sea. How does property law treat that situation?
 

Sounds like accretion to me. I don't see any reason why a landowner would object, though. More beach is a good thing, unless you're talking about an additional mile of beach or something.

On the face of things, it sounds like a child crying because their parents got them ice cream for dinner when they really wanted to eat glass.
 

The reason the property owner is objecting is because their private beach is being converted into a public beach. If they'd wanted land adjoining a public beach, presumably they would have bought that, instead. It certainly would have been a lot cheaper.

A taking doesn't cease to be a taking just because somebody else, other than the property owner, would have volunteered for it. People are entitled to their actual preferences, rather than the ones the government would prefer they had.

From what I've heard of the case, they're likely to lose. The Supreme court is fairly comfortable with the idea that a government can strip you of a large part of the use and value of your land, and so long as you're permitted to visit it once in a while, they won't admit a taking has occurred. This is a pretty extreme example, though; As I say, they're actually going to have to re-write the property description, and claim THAT isn't a taking.

Suppose the state gives up on nourishing that beech, and it resumes it's natural proportions. Think the state will give them their private beech back? I'm betting no.

It's a taking.
 

Brett, if the Court rules as you expect, then it's only a "taking" in your delusional mind.

Suppose the state gives up on nourishing that beech, and it resumes it's natural proportions. Think the state will give them their private beech back? I'm betting no.

If the state gives up dumping sand on the beach their property will wash out to sea. Think they'd regret this idiotic lawsuit? I'm betting yes.
 

"If the state gives up dumping sand on the beach their property will wash out to sea."

But Kent Safriet, attorney for the Panhandle landowners, says such claims are overblown.

...

"My clients, on the other hand, have a 200-foot stretch of beach," he said. They did not want, or need, the state to add 75 feet, opening it up to the public."

While more than half of Florida's 825 miles of sandy beaches are eroding, some are not. Some are actually growing through accretion, the slow but constant depositing of sand along a beach by currents and waves.


The beach in question is just a fraction of the stretch they're replenishing, and it doesn't need it. They could have skipped right over it. They've done that sort of thing before, when local owners objected.

They didn't in this case, because they wanted to take the beach away from them.
 

Wow, their lawyer says it wasn't necessary? Sorry I doubted you...

In any case, I am 100% in favor of removing all that sand. When their property washes into the sea, I'll bring the popcorn.
 

Don't buy your popcorn now, it's sure to be stale long before that happens.

As the story notes, the beach replenishers had the option of just skipping over the holdouts' section of beach, which would convert it into something like a trench leading out to sea. It's been done before where a property owner in the middle of a replenishment zone objected.

The reason they didn't do it here, is that they wanted to take the beach.

The decision is due in the next month or two.
 

The reason they didn't do it here, is that they wanted to take the beach.

# posted by Brett : 3:58 PM


Brett, I read the article. You are lying.
 

If you read the article, you know they did have that option. What's YOUR explanation for why they didn't take it?

My explanation is that taking that route wouldn't have ended up with the local government owning the beach. Somebody is certainly lying here, but Occam's law says that if there's a politician involved, they're the liar.

You, on the other hand, assume the owners' lawyer is lying about an easily verified objective fact, how deep the beach is. Why would he be stupid enough to do that?
 

Brett, the reason they can't leave gaps is that the water goes into the gaps and erodes the beach much faster than if there are no gaps. It's also more expensive.

But, like I keep saying, I would remove ALL the sand and stop all future projects. Beach restoration is nothing but welfare for the wealthy.
 

The reason they can't do what they've done before?

But we agree about something: The government should not be replenishing beaches. I just happen to think it's doubly wrong of them to replenish them and then steal them.
 

The reason they can't do what they've done before?

Why do you think they have to restore the beaches again after only a few years?
 

"Why do you think they have to restore the beaches again after only a few years?"

I would assume it's because dumping a bunch of sand on a beach that's naturally eroding is well known to be just a temporary fix. They've got to do it all over again after a few years everywhere they do it, in case you hadn't noticed.

It's one of the things about beach replenishment that makes it so stupid...
 

The property line, if you look up the description in the plat book, undoubtedly is defined as reaching to the water line. That's the usual practice on the shore of a body of water. If the beach had expanded naturally, there's no question AT ALL that the property would continue to reach to the water. They're actually going to have to re-write the property description to strip the owner of ownership right up to the high tide line. That's not a taking?

You're getting pretty outraged for a guy who is inventing facts out of thin air.

Not one square inch of property is being taken.

Like I already said, the only reason there's even a claim here at all is because an earlier Florida judicial decision went the other way, and the landowner claims Florida has to follow that precedent or the Constitution is violated.

If not for the earlier decision, they wouldn't even be trying. Yet in your world the landowner has an open and shut claim. Do you ever, ever, ever stop to think that maybe the law isn't what you wish it to be?
 

Brett, that a constant barrier would be more efficient than one with gaps seems painfully obvious to me. Why isn't it obvious to you?
 

Steve, the reason the earlier court decision went the other way, was that the higher court in Florida reversed over a hundred years of Florida precedent on the subject. It was long established in Florida that the property line of property on the cost extended to the mean high tide, and followed it as the beach grew and shrank.

Until the Florida Supreme court decided to toss that long standing precedent, and say the property owners had never in the first place had a right which had been well established in Florida law for over a century. And which is pretty standard in a lot of states.

I'm not making this stuff up, I'm simply familiar with the case.
 

"Brett, that a constant barrier would be more efficient than one with gaps seems painfully obvious to me. Why isn't it obvious to you?"

Why isn't it obvious to beach replenishers in Florida, who have in fact responded to holdouts by simply skipping past their section of the beach? Maybe because it doesn't make that big a difference, if the gap isn't fairly large.
 

Brett, did that "hundred years of precedent" involve trucking in God knows how many tons of sand?
 

Why isn't it obvious to beach replenishers in Florida, who have in fact responded to holdouts by simply skipping past their section of the beach? Maybe because it doesn't make that big a difference, if the gap isn't fairly large.

What makes you think it isn't obvious to the people replacing beach sand? The faster the sand goes away, the faster they are being paid to bring in more sand.
 

Legally irrelevant. The people suing aren't suing to get the extra beach. They're suing to have their damn beach left alone.

The Florida supreme court, in a state where property owners on the beach did, in fact, have the right to have their property wax AND wane with the natural movements of the shore, ruled that that right didn't exist, and never had. Their ruling was based on a legal LIE.

They had to perpetrate that lie, in order to pretend that nothing was being taken from the property owners.

Prior to this, the government offered beach owners an exchange of replenishment in return for the government getting control of the new beach. Some owners said yes, some owners said no, and it wasn't a taking because they were given a CHOICE. In effect, the government was buying the beach with sand as the currency, and accepting it when their offer was turned down.

That's what changed here, the choice was taken away. That's what made it a taking.
 

natural movements of the shore

Big trucks dumping sand on the beach is not "natural", and I'm guessing that means it is not covered by the "hundred years of precedent".
 

The argument transcript for the Florida case is here; the lower court ruling is here.

A few things. As Scalia notes, even if it is a taking, they got some compensation; the dispute appears to be that they should have a chance to determine if it is enough.

"government can strip you of a large part of the use and value of your land"

What "large" means is open to dispute, but yes, traditional property law allows some state regulation that decreases some control of property (which brings with it some loss of value) without compensation. The argument is that this reasonable regulation is the one at issue here.

As to overturning 100 years of law; the Fl ruling appeals to the common law. Also, some justices noted that this is something of a new situation. Thus, it appears quite debatable if the court suddenly changed 100 years of law.

As to the benefits of the legislative plan here, weighing the policy value isn't quite the point of the judges here. If the state has the sovereign power, it can use it unwisely.
 

Consider the correlation of the common law with the principles of originalism in applying the Constitution to the approach of a particular state with its view of the common law (which can differ from state to state even though starting with the commonality of the English common law pre-Revolution, as well as post-Revolution). Common law can be living in its development rather than static.

Regulatory takings was a hot constitutional topic going back a few decades that was finally brought under control after the conservative Justices came to their senses and realized that yahoo lawyers were getting aggressive in challenging as takings just about every state regulation that impacted real estate. If the brakes had not been put on, perhaps Village of Euclid would have been reversed. (I assume civil libertarians have long fretted over Village of Euclid.)
 

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