George:

As is often the case in reading Supreme Court decisions, there is both more and less to this opinion than meets the eye.

You have to understand some of the doctrinal trends in the courts before you start trying to make sense of it.

At one level, the case was a continuation, or at least a spur off the trunk line, of the cases that deal with governmental takings. The Due Process Clause has long required that government compensate private property owners if their property is "taken" for a public purpose. A "taking" can be complete, as in the situation where the government buys your house, or it can be partial, as in the situation where the government's actions significantly reduce the value of the property. In the latter category have been situations such as where your access to the property is denied (pretty clear), where your customers can't get to the property to shop there because the access road is blocked off (almost as clear), where access is still available but your customers don't want to brave the traffic jams caused by the construction (you lose), or where changing zoning or environmental regulations mean you can't do what you used to be able to do (maybe yes, maybe no).

Private property advocates -- like Antonin Scalia, most bitingly -- have been inclined to allow property owners to sue governments for almost any diminution of property value caused by governmental action. Though that is not the law at this point, it is where the private property advocates want to drive the law. And it is where the Supreme Court really does not want to go, because the Court has been generally hostile to suits against governments for doing what governments do. But it has been hard for them to figure out where to draw the line.

Another consistent background theme of the Supreme Court's jurisprudence of late has been to leave decision-making authority with state and local officials rather than to make federal judges the place where everyone runs to solve problems. The Court has said on a number of occasions that some decisions are best made by administrators close to the action rather than by judges far removed from it. If we set up a system that says that everyone disgruntled by a government action can run to federal court to either reverse that action or get paid for it, then administrators can't do their jobs and the courts will be clogged. Thus decisions over things like health care for prison inmates, or police practices, are increasingly left to administrators, with little oversight or second-guessing by the courts. This principle is sometimes referred to (overly broadly) as federalism; it can also be seen as a matter of judicial economy and decentralization.

The majority opinion was written by a group of judges whom many call the "liberal" bloc of the Court, while the dissent was written by the side that many would call the "conservative" wing of the Court.

Now, let's take a look at just how the labels "liberal" and "conservative" have no meaning here.

Those whom we tend to call "liberals" are uncomfortable with the staunch private property activists; those whom we tend to call "conservatives"
are more comfortable with them. On this level, the "liberal" majority seems to have written a "liberal" decision.

But those whom we tend to call "liberals" are more receptive to new claims and to seeking compensation for governmental wrongs, whereas those whom we tend to call "conservatives" generally want to limit lawsuits, particularly those against governments. On this level, the "liberal" majority seems to have written a "conservative" opinion, and the "conservative" dissenters would seem to be taking a more "liberal" line.

And those whom the Republicans at the moment are calling "activist judges" are generally more willing to use the courts to invalidate governmental actions, whereas those whom the Republicans at the moment are calling "strict constructionist" judges are generally less willing to use judicial power to strike down government action. On this level, the "liberal" majority would seem to be the "strict constructionists" and the "conservative" dissenters would seem to be the "activists."

Finally, when it comes to the federalism/decentralization analysis, it would seem that the "liberal" majority has written a "conservative" decision upholding the power of the state and local governments, while the "conservative" dissenters have written a "liberal" opinion that would lead to increased court supervision of state and local governmental decisions.

Ultimately, what the Court has said in this decision is that they will not attempt to decide what constitutes a valid "public purpose"; they will leave that decision to the elected officials.

So when David Toscano and others say that the answer is to write legislation that limits the kinds of public purposes for which takings will be permitted, that is absolutely what the Court intends. When the Code of Virginia says that the eminent domain power may be used for any legitimate public purpose, that provision of the Code needs to be amended to limit the kind of "public" purpose for which it may be used.

Lloyd Snook (electronic mail, June 29, 2005)