“Talk of judicial activism tends to focus on results, but the Guggenheim case shows that maybe we should talk a little bit more about method.”
—Doug Kendall and Elizabeth Wydra, “Torturing the Law: Jay Bybee models conservative judicial activism in the 9th Circuit,” by Doug Kendall and Elizabeth Wydra, in Slate
Ooh, yeah! Or, more precisely,“Finally!”
Bybee, as those who follow national legal-political issues know, is the former Bush administration assistant attorney general who as head of the Justice Department’s Office of Legal Counsel—the office charges with giving administration officials straight analysis of the law—co-authored, along with the infamous John Yoo, a legal memorandum that pronounced legal under United States and international law interrogation techniques used on terrorist suspects captured oversees that almost everyone familiar with relevant federal and international law believe constituted illegal torture.
The Bush administration eventually withdrew that memorandum, and Bybee is reported to have confided to friends that he regrets having signed that memo, which actually was written mostly by Yoo. Before the memo came to light, Bybee was nominated and confirmed for a seat of the Court of Appeals for the Ninth Circuit, the court that had federal appellate jurisdiction over cases from the three West Coast states, Montana, Idaho, Nevada, Arizona, Alaska, Hawaii and Guam.
In the Guggenheim case—specifically, Guggenheim v. City of Goleta—Bybee has, as Kendall and Wydra put it so succinctly, “managed to do what has eluded national property-rights advocates for decades: declare a rent control ordinance unconstitutional under the Fifth Amendment's Takings Clause.” And as the quote I chose to highlight at the opening of this piece, talk of judicial activism does tend to focus on results, but the Guggenheim case shows that maybe we should talk a little bit more about method, because it really is method—what lawyers know as procedural law—that the rightwing legal community, most significantly those on the Supreme Court and the lower federal courts—have used regularly to achieve the substantive results that want.
I recognized eons ago that the rightwing legal movement—i.e., the members of the rightwing bar group, the Federalist Society, including its large judicial contingent—has been using court-fabricated pleading, jurisdictional, quasi-jurisdictional, sovereign immunity (mainly a bizarre rewriting of the actual text of the Eleventh Amendment), and “qualified immunity” doctrines to quietly recreate constitutional and other federal procedural law in the image of the Republic Party’s political and ideological bases. But until now it seemed that a few law professors and I were the only ones did. So it’s really, really nice to finally see an article published on a widely-read media website that points out this concerted rightwing judicial strategy and calls that spade the spade that it is.
The political right has had a nearly three-decade-long free ride, because the general news media limits its reporting and discussion of legal issues and court opinions—including Supreme Court opinions—to hot-button culture wars issues and to court opinions decided on what lawyers call the “merits,” a legal term of art that means that the case was decided on the substantive issue that the case was about.
Usually, these procedural gimmicks are used to defeat access to a court decision on the merits when the party who filed the lawsuit is invoking a constitutional or federal statutory right favored by the ideological progressives. But, as Kendall and Wydra explain, last week, “Jay Bybee is a judge on the U.S. Court of Appeals for the 9th Circuit, but apparently being elevated to the federal bench hasn't stunted his creative powers. In [Guggenheim], Bybee has managed to do what has eluded national property-rights advocates for decades: declare a rent control ordinance unconstitutional under the Fifth Amendment's Takings Clause.”
And, as the Slate article authors illustrate, he did it by creating fictions of both law and fact. The Guggenheims had bought a mobile home park in 1997 that was subject to mobile home rent control laws enacted in 1979 and amended in 1987. The purchase price reflected the reduced value of the property because of the reduced rental profits resulting from the rent control plan. The mobile park was located in what at the time was an unincorporated part Santa Barbara County, but which in 2002 became incorporated as the city of Goleta. By state law, as part of the incorporation process, the new city’s charter provided that all existing laws pertaining to that area under Santa Barbara County law would become city ordinances at the moment of incorporation as the city of Goleta, and the effect of all those laws would “relate back” so that they had the same effect as they had, pre-incorporation.
The Guggenheims sued, claiming that the rent-control law violated the Fifth Amendment’s bar to a government “taking” of private property with just compensation. For decades now, the rightwing “property rights” folks—most of whom normally consider the filing of lawsuits anathema to the very concept of freedom (although they never explain why, exactly), and who sing the praises of states’ (and local governments’) rights to violate the constitutional rights of individuals, all the while styling themselves libertarians—have filed federal lawsuit upon federal lawsuit alleging that regulations such as zoning laws and environmental laws violate their Fifth Amendment rights under that Amendment’s “takings” clause because the regulations diminish the value of their real estate. It is, the claim, a “regulatory taking” without just compensation.
They have rarely succeeded in getting a favorable ruling on the “merits”—that is, on the substantive legal issue—and have never before been able to get a ruling holding that rent-control regulations constitute an unconstitutional “taking” under the Fifth Amendment.
As a June 3 article in The New York Times discussed, current Supreme Court nominee Elena Kagan, back in 1987 when she was a clerk to Justice Thurgood Marshall, wrote an angry memorandum urging her boss to try to overturn a conservative appeals court ruling that had questioned the constitutionality of a rent-control ordinance.” Kagan said that the appeals court judge who wrote the opinion “has flouted the opinions of this court and has reached a result that is sweeping in its implications. Although the decision does not invalidate the ordinance on its merits, it is an authorization for broad, wholesale attacks on rent-control regulation.” The Supreme Court refused to hear the case, allowing the ruling to stand, not on the merits”—not on the Fifth Amendment issue but instead on the basis of some procedural gimmick.
That has been par for the course. Court-fabricated procedural/jurisdictional/quasi-jurisdictional/soveright-immmunity/“qualified”-immunity gimmicks routinely bar people from access to court in order to vindicate individual constitutional rights—including challenging the constitutional of laws and government policies—that liberals value. And those procedural gimmicks are ignored, or new ones created ad hoc, in order to allow access to court by those who claim violations of individual constitutional rights that conservatives hold dear.
But in the Guggenheim case, Bybee fabricated, first, a legal fiction and then a fact in order to pronounce this rent-control law and, inferentially, all rent-control laws, because there was nothing unusual about this particular one, violative of the “takings” clause. Bybee fabricated the legal fiction that there was a momentary gap in time when the ordinance did not apply: that moment when the land ceased to be part of unincorporated Santa Barbara County and before it was a newly-incorporated city-and that therefore the city ordinance was a new ordinance. This, Bybee said, enabled the Guggenheims to avoid the statute-of-limitations bar to their challenging the initial ordinance more than two years after they bought the property.
And, allowing the Guggenheims to proceed with the lawsuit and obtain a ruling on the “merits,” Bybee fabricated a fact. Bybee claimed that the Guggenheims had, as a matter of fact, seen a diminishment of the value of their property since they purchased it; without a diminishment in value since they bought the property, there would, after all, be no “taking,” as a matter of fact, irrespective of the law. As Judge Andrew Kleinfeld, a conservative Reagan appointee, said in his dissent, the price the Guggenheims paid for the property in 1997 reflected the diminished value due to the rent-control ordinance.
The Guggenheims were claiming not a diminishment but the inability to reap a windfall from an end to the ordinance. They were, Bybee said, entitled to something that few others these days are entitled to: a ruling on the merits of their challenge to the constitutionality of a law or government policy or action. They were, Bybee said, entitled to a ruling on whether they were entitled to something not that they had lost but instead that they never had—a property whose value was based in part on an absence of an applicable rent-control regulation—because they were entitled to a ruling on the substantive constitutional issue of whether rent-control regulations violate the property owners’ rights under the Fifth Amendment’s “takings” clause.
And we all know that it does. Even if none other than self-styled constitutional originalist and textualist Antonin Scalia has said that the Framers had in mind only actual physical takings of property, not the diminishment of the value of the property through regulation. And Kendall and Wydra quote Scalia as having said exactly that.
Judicial activism, like beauty, is in the eye of the judicial beholder. As is access to court in order to have constitutional challenges decided on the merits.