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Supreme Court Review

Showdown at Cedar Point: “Sole and Despotic Dominion” Gains Ground

Abstract

Blackstone famously declared: “There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”1 That seems to be so, if not for all “mankind,” then at least for the current majority of the Supreme Court.

In the modern era, the deregulatory impact of property rights and takings law has been blunted by the dominant role of ad hoc balancing. Advocates, scholars, and judges seeking to sharpen the takings challenge to regulation have thus focused their efforts on creating and expanding “per se rules” that circumvent the default regime of balancing. So perhaps it should be no surprise that the first major takings case decided by the lopsidedly conservative Supreme Court that took the bench in 2020 produced a resounding victory for private property Blackstone famously declared: “There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”1 That seems to be so, if not for all “mankind,” then at least for the current majority of the Supreme Court. In the modern era, the deregulatory impact of property rights and takings law has been blunted by the dominant role of ad hoc balancing. Advocates, scholars, and judges seeking to sharpen the takings challenge to regulation have thus focused their efforts on creating and expanding “per se rules” that circumvent the default regime of balancing. So perhaps it should be no surprise that the first major takings case decided by the lopsidedly conservative Supreme Court that took the bench in 2020 produced a resounding victory for private property

It was indeed no great surprise that the Court in Cedar Point Nursery v. Hassid2 struck down the broad right of access for union organizers that California law had prescribed for agricultural workplaces. More surprising was how they won. What might have been an incremental ratcheting up of scrutiny for physical intrusions on private property— say, one that confined union organizers’ access rights to the very narrow boundaries the Court had previously established under federal labor law—became instead a bellwether case. The Court’s 6-3 decision was eye-opening in its breadth, its divergence from precedent, its implications for longstanding regulatory practices, and its provocative rhetoric, including its paean to “sole and despotic dominion.” The immediate impact of Cedar Point may be limited to government-authorized physical invasions, which are relatively unusual. Yet the decision may signal a new willingness on the part of the newly fortified conservative majority of the Court to constitutionalize restrictions on the regulatory state through takings law.

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