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U.S. Supreme Court Is ‘Fertile’ Ground for Property-Rights Group

June 25, 2021, 8:46 AM

The U.S. Supreme Court’s ruling for a California strawberry farm that sought to keep union organizers away shows that the court “takes property rights very seriously,” said Larry Salzman, litigation director for the Pacific Legal Foundation, the group that won the case.

For progressives, the 6-3 party-line vote on June 23 in Cedar Point Nursery v. Hassid is the latest blow to workers and a troubling sign of things to come from a court dominated by six Republican appointees.

Whatever one’s vantage point, the win that brings PLF’s high-court record to 13-2 is the latest sign that the group has an attentive—and, perhaps, growing—audience with a majority of the court.

It’s a court “that takes the Constitution’s limits on executive and legislative power more seriously than in the past several generations,” Salzman said. “That is a very fertile environment for PLF’s work to enforce constitutional limits on government power.”

Ann Southworth, a University of California Irvine law professor who teaches and writes on the legal profession and lawyers who serve causes, said PLF’s Cedar Point win “is part of a much larger and important story of how conservative lawyers and their financial and political backers have invested in strategic campaigns to resist regulation through the courts.”

“These efforts have complemented, and have been linked with, efforts to appoint sympathetic judges and justices,” said Southworth, author of the 2008 book “Lawyers of the Right: Professionalizing the Conservative Coalition.”

“Those long-term investments are now yielding returns in the form of litigation victories by PLF and other organizations with similar missions,” she said.

‘Different Worldview’

PLF was founded in 1973 by lawyers from the administration of California Gov. Ronald Reagan (R). The public interest legal movement at the time was associated with more left-leaning causes.

The group was founded “to declare war on liberalism in the courts,” said Jefferson Decker, a Rutgers professor who wrote about PLF in his 2016 book “The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government.”

Salzman, who has worked at PLF on-and-off since 2004 and doesn’t embrace the “conservative” label, characterized the organization’s founding differently: The question in their mind was, “Why isn’t there a civil liberties organization on the side of limited government?”

Along with other groups and a like-minded judiciary, PLF has been at the forefront of pressing property claims, including ones based on the Fifth Amendment’s Takings Clause, which forbids that “private property be taken for public use, without just compensation.”

The win in Cedar Point—holding that California’s regulation allowing union access to property is a “per se physical taking”—is among PLF’s most significant. Salzman ranks it with the group’s landmark takings wins in 1987‘s Nollan v. California Coastal Commission and 2019’s Knick v. Township of Scott. Like Cedar Point, those were close cases, too, decided 5-4.

Of its two rare Supreme Court losses, one came in 1980, and the other was in 2017’s Murr v. Wisconsin, a 5-3 ruling authored by swing justice Anthony Kennedy and joined by the court’s then-four Democratic appointees. After Justice Brett Kavanaugh replaced Kennedy, PLF won Knick in 2019, which Salzman said “really opened courthouse doors to federal takings claims after they had been closed for nearly 30 years.”

Chief Justice John Roberts wrote the majority opinions in both Cedar Point and Knick.

Dissenting in Knick, Justice Elena Kagan wrote for herself and Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor that the majority’s ruling bucked both precedent and the Takings Clause itself. Dissenting in Cedar Point, Breyer wrote for himself, Kagan, and Sotomayor that the ruling “threatens to make many ordinary forms of regulation unusually complex or impractical.”

Asked for his response to criticism of Cedar Point as a victory for those seeking to undermine union organizing, Salzman said “we have a different worldview.”

“Property rights,” he said, “secure people’s civil rights, so you do no good in trying to pit classes of people—business owners versus workers—against each other, when the good comes from respecting the individual rights of all of those parties. And that’s what PLF is after.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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