Oh, But Justice Souter, These Days Judging Is VERY Easy

“It saddens me to think that it took Justice Souter 19 years of heavy constitutional lifting and departure from the court before he could turn to the American people and explain clearly that much as we might want judging to be easy, it never can be.”—Dahlia Lithwick, in Slate

Well, actually, these days judging has become exquisitely easy—unless, that is, the particular case, say, pits two large corporations, each of them represented by a high-profile, big-name lawyer, usually a partner at a mega law firm. Or pits the prosecutor’s office against some former CEO or CFO who is represented by a big-name lawyer, usually a partner at a mega law firm. Then, the judge, judges or justices must actually judge—as that word, used as a verb, is billed in middle school civics class and elsewhere.

Otherwise, judging is now simply a formula, one that has nothing to do with a fair reading of the Constitution or of statutes but that has absolutely everything to do with docket-clearing and with aggressively limiting access to court, at least to challenge the constitutionality of a statute, government policy or government act, by someone who is not claiming a Fifth Amendment “takings” violation, religious discrimination, “reverse discrimination, or violation of the Second Amendment right to bear arms—virtually the only constitutional rights that, according to the chief justice and colleagues Scalia, Thomas, and Alito believe trump states’ (and local governments’) rights to violate the constitutional rights of individuals.

An origianlist/textualist interpretation of the Constitution’s Supremacy Clause seems to work well for litigants who invoke the constitutional rights at issue in those cases, but only ever so rarely for those who invoke any of the other constitutional rights that accrue to individuals—or that a textualist reading of the relevant parts of the Constitution would seem to suggest, but that apparently do not.

For people invoking those rights, there will always be some procedural flaw—in the way the lawsuit’s complaint was drafted; in legal “standing” to bring the case, or in some other “subject matter” jurisdictional or quasi-jurisdictional respect; or by virtue (so to speak) of the ever-metastasizing doctrines of sovereign immunity and “qualified” immunity. Or in whatever. The stated grounds are just formality, and fungible.

So, no, Justice Souter. And, no, Dahlia. While it’s true that judging never should be easy, these days it almost always is. I mean, how hard is it, really, to look at whom the plaintiff is; whom his, her or its lawyer is, or whether or not the plaintiff even has a lawyer (self-representation being a crime inevitably punishable not just by dismissal of the lawsuit but by defamatory and demeaning diatribe); and to look at whether the case presents an opportunity to further Republican Party interests?

Not very.

While the World Develops Alternatives to Mega-Dependence on Oil

“I journeyed through Ecuador, where Chevron (CVX) faces a multibillion-dollar lawsuit for a legacy of contamination that environmentalists there regard as the Chernobyl of oil.…

The worst outcome of the mess in the Gulf would be the perpetuation of the conceit that error and greed can be regulated out of the worldwide oil industry.”
—Peter Maass, “To BP or Not To BP: Here’s why a spill-inspired boycott doesn’t make sense," in Slate

I first learned of the Chevron disaster in Ecuador when I read an article about it a few days ago. I was stunned—not that it had occurred but that I wasn’t aware that it had occurred. After all, I follow the news pretty closely; I have my web-browser opening page set to Yahoo News, I read The New York Times online every day (well, parts of it, anyway), and I listen regularly to NPR. Why didn’t I know about this?

Well, now I do. Thanks to the BP oil spill.

I’ve been dismayed at the punditry’s conventional wisdom that the BP oil spill is Obama’s Katrina, by which they mean, apparently, not just that his slowness to grasp the calamitous nature of the situation, and his absurd deference to BP, lowers the public’s confidence in Obama himself but also that it undermines confidence in the idea of government and government regulation. In other words, this reasoning goes, people will now conclude that the tea baggers and the Club for Growth are right (er, correct) that laissez-faire corporatism is good, because, well, the government allowed BP to do as it wished rather than actually regulating offshore drilling and BP, left alone, did such a good job.

Save the environment by removing the fig leaf of government control! What we need is more offshore oil spills, courtesy of the oil companies! Or something.

Actually, what the BP spill is likely to be is not Obama’s Katrina but rather the anti-government extremists’ Katrina. That’s because, unlike the healthcare-legislation debate, the global-warming-legislation debate, the financial bailouts, the economic stimulus legislation, and even the financial-industry-reform bill, the fact of the oil spill and its effects, and the failure of BP to have prevented it and then to contain it, are not subject to factual debate.

Nor can there be doubt about who its human victims are: most directly, the residents of the six gulf-coast states, each of those states teaming with antigovernment extremists. This is one situation whose truths cannot be distorted by Glenn Beck, Sarah Palin and Rush Limbaugh. Or by Mitch McConnell, Marco Rubio or Rand Paul—who tried but failed. There are some situations, however few, whose facts speak so loudly for themselves that they cannot be rewritten by demagogues. Or by the Chamber of Commerce and the Club for Growth.

So while Maass certainly is spot-on saying that the only way to significantly diminish the oil-caused calamities that recites—from destruction of major ecosystems to wars—is for the world to greatly reduce its dependence on oil, and is right when he says that error and greed cannot be regulated out of the worldwide oil industry, I think he’s wrong to degrade that role that government regulation can play in reducing the chance of devastating accidents and ensuring at least that technology is in place and available to staunch the oil flow.

But to have effect beyond (literally) our shores, this obviously would have to be done on an international level, through some international organization similar, perhaps, to the Geneva Conventions on armed conflict, combined with, say, the International Monetary Fund. An international organization that combines international law with a mechanism for enforcement, and that employs a small army of top engineers, could save ecosystems, wildlife, and livelihoods en mass while the world develops alternatives to its mega-dependence on oil.

Maass is right that, as the title of his article says, a boycott of this one oil company’s gas stations is just plain silly. But there are possible activist campaigns that would not be.

A Gap Not In Time But In Judicial Veracity

“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.

D-Day.

D-Day. June 6, 1944. Just thinking about it right now. And wondering whether anyone else who wasn't alive then is.

Jim Joyce For the Supreme Court!

So John Roberts really does moonlight as an umpire! (Sorry. I couldn’t resist.)

The BP Oil Leak and Tea-Party/Business-Republican Politics

“The only good news from the oil spill is that when catastrophe strikes, even some hard-line conservatives, like Gov. Bobby Jindal of Louisiana, start begging for the federal government to act, and act big. It’s the crunch moment for government to make its case — as Obama belatedly started to do on Thursday. But words are no match for results. As long as the stain washes up on shore, the hole in BP’s pipe will serve the right as a gaping hole in the president’s argument for expanded government supervision of, for starters, Big Oil and big banks. It’s not just the gulf that could suffer for decades to come.”
—Frank Rich, New York Times, Sunday

I love Frank Rich. I agree with him almost always, and am thrilled that someone whose commentary will be read by millions, among them people who, well, matter, actually says what I would say if I wrote a column that is read by millions—among them people who matter.

And Sunday’s column was no exception. Well, except for that second-last sentence in what is the final paragraph of the column.

Rich is one of the few political commentators who recognize rote conventional wisdom for what it is: mechanical, formulaic, and often out-of-date pronouncements that echo from one to another to another pundit, without questioning, without independent analysis. So I was surprised that he accepts unquestioningly the presumption that the federal government’s failure to stem the tide of oil pouring into the Gulf is good news for the Tea Partiers and the more traditional “pro small-government/pro large-corporation” Republicans. There is, after all, a difference between a government’s inability to pull off an engineering feat of a perhaps-impossible nature after a crisis has arisen and the government’s ability to force the prevention of such crises in the first place. And that difference is what this oil-spill tragedy demonstrates, in high relief.

The art term, not the term of art.

The larger tenet of Reich’s column is an accurate one: “Obama,” he says, “was elected as a progressive antidote to [Bush’s] discredited brand of governance. Of all the president’s stated goals, none may be more sweeping than his desire to prove that government is not always a hapless and intrusive bureaucratic assault on taxpayers’ patience and pocketbooks, but a potential force for good.” But a prerequisite to government’s ability to competently act as a force for good—in this instance, a force for the prevention of immense harm to millions of people, many of them undoubtedly Glenn Beck, Rush Limbaugh and Sarah Palin aficionados, is that the government first be given the legal authority, the legal responsibility, and the actual means with which to do this.

Yes, most big-government-versus-small-government issues lend themselves to the irrational we-want-it-both-ways (“Keep your government hands off my Medicare!”) demagoguery. But not this one. Which is why this one is far more likely to kill the Tea Party movement than help it. As Rich notes, Rand Paul claimed in his victory speech after winning the Republican primary in a race for an open Senate seat in Tennessee earlier this month, his victory was a victory for the Tea Party.

But because, also as Rich mentions, Paul soon attributed the BP spill to mere accident—“Accidents happen”—rather than to premeditated negligence, and because a cascade of internal BP memos leaked to the New York Times, which reported on them on Saturday, detail in jaw-dropping fashion exactly how this particular accident happened, the Tea Party movement is likely to be, rather than enhanced by this situation, fatally wounded by it.

The stains that wash up on shore, the destruction of the fishing industry in the Gulf and the perhaps nearly as devastating impact on tourism, even on some of Florida’s gulf coast, the death of thousands of birds, and who knows what else, cannot logically be seen as an argument for failing to dramatically strengthen government oversight over mega-corporations and mega-industries that can cause such profound, extensive, undeniable, harm—immediate and long-term—to such a huge swath of the public and to the fundamental ecosystem.

The federal government is impotent to mitigate this disaster because it has not had what is should have had and what, hopefully it now will be given: a small separate agency staffed entirely with top-flight, well-paid engineers who can develop strategies that geared toward preventing such catastrophes and dealing expeditiously and proficiently with crises when they do occur. But the federal government was powerless to prevent this crisis not because of an inherent failure of government, by its very nature, to do so but instead because of the triumph of an ideology whose very goal was to render the government powerless and the oil companies and other huge industries all-powerful to determine so much for all of us.

If this calamity in the Gulf illustrates anything—and it does—it’s that libertarian ideology should not be limited to government imposition upon individual rights. BP, which will affect the quality of life for so many individuals for a long time to come, is not a government subsidiary. Not technically, anyway.

A Gap Not In Time But In Judicial Veracity

“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.