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Scalia's Supreme Court Vacancy Casts Doubts Over Property Rights

Updated on February 19, 2016

Scalia's Death Leaves a Void on Property Rights

The death this week of Supreme Court Justice Antonin Scalia creates uncertainties for property rights disputes that often were decided in favor of landowners in recent years.

The Supreme court largely avoided constitutional interpretations of property rights before Scalia joined the Court in 1986.

Afterward, he led many of the Court’s conservative decisions on government takings and just compensation under the Fifth Amendment’s “Takings Clause” and the Fourteenth Amendment’s procedural due process.

Examples included Nollan v. California Coastal Commission, which restricted the government’s authority to force landowners to allow other persons to use their property without compensation.

Scalia also wrote the majority opinion in Lucas v. South Carolina Coastal Council (1992), which said regulations that eliminate the economic value of an owner’s land are the same as a government taking.

The Lucas case also developed the total takings test of government regulation, which says governments can take a landowner’s property only after considering (1) the degree of harm to public lands or adjacent property posed by the regulated activities, (2) the social value of such activities, and (3) the relative ease with which the alleged harms can be avoided through measures taken by either the claimant or the government.

Scalia again led the court in Stop the Beach Renourishment v. Florida Department of Environmental Protection. Scalia wrote that judicial rulings can constitute takings for which property owners should be compensated.

The options the Obama administration is considering to replace Scalia make judges in the District of Columbia top candidates.

They include Sri Srinivasan, a U.S. Court of Appeals judge for the District of Columbia Circuit; Merrick Garland, chief judge of the United States Court of Appeals for the District of Columbia Circuit and Patricia Ann Millett, who like Srinivasan is a U.S. Court of Appeals judge for the District of Columbia Circuit.

Other potential nominees include Neal Katyal, a Georgetown law professor who spent one year as Obama’s acting solicitor general, and former U.S. Attorney General Eric Holder.

Supreme Court Faces Property Rights Uncertainties

The death of Supreme Court Justice Antonin Scalia leaves a void in conservative opinions on property rights.
The death of Supreme Court Justice Antonin Scalia leaves a void in conservative opinions on property rights.


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