March 25, 2021

Amy Coney Barrett "may be giving Justice Elena Kagan a run for her money in the department of well-designed hypothetical questions" — according to Linda Greenhouse...

... writing in "Testing Time at the Supreme Court/The outcome of a property rights case could foretell how much conservatives can expect from the justices" (NYT). 

The California law, enacted in 1975 as the product of Cesar Chavez’s drive to organize the state’s farmworkers, authorizes the union to approach workers in the field before and after the working day for up to three hours on 120 days of a year.

“So let me ask you this,” Justice Amy Coney Barrett said to [the lawyer arguing that any authorization of entry onto private property is a taking]. “What if California had a regulation that permitted union organizers to go onto the property of your clients one hour a day, one day a year. Is that a taking subject to the per se rule?”

Yes, the lawyer replied. His answer was certainly no surprise to the justices listening remotely to the argument. His theory of the case required precisely that answer, as Justice Barrett — who may be giving Justice Elena Kagan a run for her money in the department of well-designed hypothetical questions — surely knew.

Nonetheless, it underscored just how audacious the Pacific Legal Foundation’s position is....

89 comments:

tim maguire said...

Why is that an example of a well-designed hypothetical? If his argument is "any," her question is "any," and his answer is "any," then what is learned by this exchange?

rhhardin said...

Maybe it's that hypotheticals from women are always stupid.

rehajm said...

...and then refused to help him overturn the result of the presidential election...

...she claims, without evidence.

Fernandinande said...

nyt link is to this blog, not to the nyt.

"Good link!"

rehajm said...

For you legal types- will this decision help decide the outcome of Liz Warren style 'stakeholder' disputes, where the political whims of not just government but virtually any special interest group would supersede the decisions of the owners and managers?

Black Bellamy said...

A "well-designed hypothetical question" is one that forces the other party into a contradictory or inconsistent position or one that introduces new information the other party would prefer not discussed. In essence it's a trap of sorts. Here we have one that elicited the expected answer. Sounds like Linda Greenhouse is sucking for access.

Big Mike said...

Your link is bad.

MartyH said...

She’s establishing a corner case. When, where are the two axes. By determining the four corners for each party you can see if there is a zone of possible agreement. You are working outside to inside to find a solution. The result may lead to insight to arrive at underlying principles or just come to a result that is acceptable to both parties.

I believe the role of the SC is the former.

gilbar said...

What if California had a regulation that permitted kids to go onto the property of your DisneyLand one hour a day, one day a year?

Would THAT be considered a taking?

Wince said...

Does prior notice of the entry have to be given to the property owner?

If not, isn't it also the randomness of the incursion as well as the duration that imposes a substantial burden on a property owner who wishes to protect his rights by monitoring the per se limitation on such entry?

Leland said...

I was expecting an earth shattering boom. Instead, I got a "duh".

Why should property owners be forced to allow people on their land to disrupt their business? Heck, people are no longer allowed to talk to elected Representatives in the US Capitol anymore. If it is good for Nancy Pelosi, why not the people of California?

Related to all this, my wife and I just finished Four Winds which touches on the subject of California farm workers pre-WWII. It was a good book until it hits this subject.

Original Mike said...

"Testing Time at the Supreme Court/The outcome of a property rights case could foretell how much conservatives can expect from the justices" (NYT).

God, how I hate the politicization of the courts.

DavidUW said...

Bring back the third amendment

TML said...

Writing question:

these two sentences threw me off. I've all-capped the offending words. Why are the "on and "for" even in there?

The California law, enacted in 1975 as the product of Cesar Chavez’s drive to organize the state’s farmworkers, authorizes the union to approach workers in the field before and after the working day for up to three hours ON 120 days of a year.

“So let me ask you this,” Justice Amy Coney Barrett said to [the lawyer arguing FOR that any authorization of entry onto private is a taking].

rehajm said...

...then what is learned by this exchange?

It is validation of the rule: if the NYT is writing about SC they are doing it to signal the justices about the direction NYT expects, nay demands, of the justices. The malleable ones, anyways...

Sebastian said...

“What if California had a regulation that permitted union organizers to go onto the property of your clients one hour a day, one day a year."

What if California had a regulation that permitted you to beat up the boss just one hour a day, one day a year? Would that still be assault?

tommyesq said...

From the article:

And in a twist of fate, the lawyer who argued against the foundation in the Palazzolo case was Sheldon Whitehouse, then Rhode Island’s attorney general and now one of the Democratic senators behind a fire-breathing brief in this week’s case that traces the network of conservative funders behind the current effort to expand property rights

So the Democratic senators' position is that the outcome should hinge on the nature of the people paying the opponents' lawyers?

Mr Wibble said...

Isn't that the kind of question any first-year law student should know to ask?

Can Of Cheese for Hunter said...

I love how smart she is. She impressed me during the confirmation hearings.

Democrats don't want smart- they want soviet loyalty

tommyesq said...

Bear in mind, the case is not about whether California can mandate that union organizers be permitted onto private property to meet with employees - it is merely whether the state should have to compensate the land-owner for this forced permission to trespass.

Also, 3 hours a day for 120 days is the equivalent to 2 1/2 months of normal business hours (8 hours per day, 5 days per week) for the purpose of organizing employees against the employer/land owner. This seems pretty substantial to me.

Whiskeybum said...

"it underscored just how audacious the Pacific Legal Foundation’s position is."

So if California Law said that any advertiser could walk into your living room once a year to give you their pitch, everyone should be OK with that? After all, what’s one hour a year with an obnoxious stranger in your personal space?

That kind of audacious?

Richard Fagin said...

This isn't a slippery slope to confiscation of private property without compensation, and when the confiscation happens, it's because you deserved it, bitter clinger.

Greg The Class Traitor said...

"it underscored just how audacious the Pacific Legal Foundation’s position is."

It's so "audacious", it holds that words actually mean things!

"Nor shall private property be taken for public use without just compensation"

Doesn't say the CA Government can't impose a "taking" on private businesses, it just says they have to pay for it.

1 hour, 1 day a year, means they have to pay a lot less than 3 hours, 120 days a year. But it doesn't mean they haven't "taken" anything, and you would have to be a moron, or completely dishonest, to pretend otherwise

Joe Smith said...

How about nobody can enter private property without either permission from the owner or a warrant from the government signed by a judge?

That works for me.

Otherwise, literally get off my lawn.

I'm Not Sure said...

"Democrats don't want smart- they want soviet loyalty"

Sort of like how none of them wanted Kammie in the primaries but as soon as she was selected to be VP, everybody got on board?

That kind of loyalty?

Can Of Cheese for Hunter said...

@I'm not sure

Yes.

Michael K said...

Blogger Original Mike said...
"Testing Time at the Supreme Court/The outcome of a property rights case could foretell how much conservatives can expect from the justices" (NYT).


The Ninth Circus case on concealed (and open) carry is coming up. The old saying about FDR's threat to pack the Court is coming around again. "A stitch in time saves Nine." Roberts instills no respect. Politics all the way.

I wonder what would happen if states like AZ became "Sanctuary States" on guns?

Achilles said...

“So let me ask you this,” Justice Amy Coney Barrett said to [the lawyer arguing that any authorization of entry onto private property is a taking]. “What if California had a regulation that permitted union organizers to go onto the property of your clients one hour a day, one day a year. Is that a taking subject to the per se rule?”

Nonetheless, it underscored just how audacious the Pacific Legal Foundation’s position is....

I think that means I get to go to Congress and the White House for 1 hour 1 day a year right as the audacious position?

The NYT has to let me in too. And CNN. Just to talk to their employees about organizing.



JCA1 said...

I'm an attorney (and I like to think a decent one) and I'm not seeing the supposed importance of this exchange. His position is the government mandating access to your property is a taking. Even if it is de minimis, it is still a taking. Not sure why this was noteworthy.

Howard said...

You people love the idea of blue collar workers as long as they know their place. No, no puede.

Jupiter said...

What if California had a law allowing men to rape any woman they liked, once a year, for up to an hour (I know, I know)? Would that be rape-rape? Or just rape?

Jupiter said...

This is called the Greenhouse Effect. I'm not sure about the details, something about a gasbag, and heat without light.

gilbar said...

Serious (SUPER SERIOUS) Question

can i put it in? I mean, just the tip; Can i put it in, if it's Just the Tip?

tim maguire said...

Howard said...You people love the idea of blue collar workers as long as they know their place. No, no puede.

Whether right or wrong, how is that claim relevant to this discussion?

tim maguire said...

gilbar said...can i put it in? I mean, just the tip; Can i put it in, if it's Just the Tip?

If you break the plane of the goal, it's a touchdown.

Mike (MJB Wolf) said...

Got an email from Sonoma County Winegrowers letting me know that 98% of the field workers in the county are vaccinated! Thank goodness that’s done and the state can now offer it to us. Except the first thing they asked my wife when she called is her race, followed by “sorry but...”

Howard said...

Tim: relevance? In a blog fight ? That's rich.

Matt Sablan said...

"Testing Time at the Supreme Court/The outcome of a property rights case could foretell how much conservatives can expect from the justices" (NYT).

God, how I hate the politicization of the courts.

-- The interesting thing is liberals never really need to "test" justices appointed by Democrats.

gspencer said...

"Nonetheless, it underscored just how audacious the Pacific Legal Foundation’s position is...."

Audacious?

To the left, the Constitution is audacious since its principal objective is to limit the government (the State).

"Everything in the State, nothing outside the State, nothing against the State.”
Benito Mussolini, a leftist icon.

Joe Smith said...

"Got an email from Sonoma County Winegrowers letting me know that 98% of the field workers in the county are vaccinated!"

Get in line behind prisoners too.

Sucker : )

Bruce Hayden said...

“She’s establishing a corner case. When, where are the two axes. By determining the four corners for each party you can see if there is a zone of possible agreement. You are working outside to inside to find a solution. The result may lead to insight to arrive at underlying principles or just come to a result that is acceptable to both parties.”

“ I'm an attorney (and I like to think a decent one) and I'm not seeing the supposed importance of this exchange. His position is the government mandating access to your property is a taking. Even if it is de minimis, it is still a taking. Not sure why this was noteworthy.”

I think that she is trying to determine what the government believes is the boundary of the partial takings. Would 10 hours a day, 200 days a year be a takings? If no, then what about 20 hours a day, 300 days a year? Government apparently believes even that isn’t a takings. They don’t think that there should be a line, meaning that they don’t believe that any limits are necessary on their power. My prediction is that that isn’t going to work with a center right Court like we have now. I suspect that the government knows this, but is gaming this, figuring that the Court would set more generous limits on whether something is a takings, if they don’t offer a reasonable suggestion on where to draw that line. But, this approach may have a downside - if the government won’t agree that anything is a temporary or partial takings, then there really isn’t a difference between what they have now, and what the government thinks shouldn't be a takings, then the line is untethered, and line drawing by the Court is necessary. We shall see.

Howard said...

Joe, the theoretical lover of blue collar workers equates farm workers with prisoners.

Michael K said...

Blogger Howard said...
You people love the idea of blue collar workers as long as they know their place. No, no puede.


Well, we know the Democrats aren't interested in the working class anymore. Your folks are all about clerisy class issues, like CRT and being Woke and LGBT. One reason you and your buddies hate Trump is that the blue collar workers were showing up at his rallies by the thousands. "Deplorables !"

Tim said...

I think I could argue that there is a clear difference. If, for instance, you have a grower that only harvests 6 weeks per year, then the organizers could interfere with his ability to harvest the crop in only 42 days per year, which in my mind is a clear taking of his property. So, while one day could be construed as not being a taking, certainly 120 days is a significant detriment to the value of his land and crops.

James K said...

I think Greenhouse just got excited because it seemed that ACB was challenging the argument that it’s a taking, and that made it a brilliant question. I’m not sure what point she was making, but it doesn’t particularly brilliant to me.

Jupiter said...

"Joe, the theoretical lover of blue collar workers equates farm workers with prisoners.".

Actually, it is the State of California that regards all of its dependents as equally deserving.

Jupiter said...

Tim said...
"... which in my mind is a clear taking of his property."

Do you have any property, Tim? Like a car, say? How many weeks a year can I drive your car, before you call it car theft? Gimme the keys, asshole!

Michelle Dulak Thomson said...

Howard,

You people love the idea of blue collar workers as long as they know their place. No, no puede.

And you, sir, apparently think that farm workers are so stupid that they can't decide for themselves whether to unionize, but need a bunch of professional hand-holders standing over them on their lunch breaks.

After all, farming is easy: "You put a seed in, you put dirt on top," saith Michael Bloomberg. Hey, a trained monkey could do that! Not that Bloomberg is comparing farm workers to trained monkeys, except, y'know, he kind of is.

Greg The Class Traitor said...

Howard said...
You people love the idea of blue collar workers as long as they know their place.

Howard is projecting again.

The Union organizers aren't "blue collar workers", and they have not the slightest care or concern about the welfare of the actual workers.

Simple proof: agricultural workers make more if illegal aliens aren't allowed to come in and compete against them. Which means that a union that cared about the workers, would have supported Trump, and opposed Biden.

Howard's supporting the people who want to put those blue collar workers "in their place", at the back end of the line.

Joe Smith said...

"Joe, the theoretical lover of blue collar workers equates farm workers with prisoners."

You obviously know nothing about labor in the wine/grape industry.

I have experience in that business going back decades.

Would it surprise you to know that a great many of these workers are not legal citizens.

It would only surprise you if you were even dumber than you are.

Stay in your lane.

Yancey Ward said...

Greenhouse is such a moron. The question really isn't addressed to the plaintiff- Barrett is really addressing the government with that question, but doing so in an indirect fashion.

Imagine it this way- where is the limiting principle? If it can be 6 hours a day 1/3 of the year, then why can't it be 12 hours a day 1/2 of the year, or 24 hours a day all year long? To get to that question, Barrett had the plaintiff clearly define what is actually in the Constitution itself, which is that there is no recognized right of trespass for anyone without a warrant or compensation. It appears the attorney answered it correctly.

This is really clearcut in my opinion- there will have to be compensation regardless of how much or how little time is involved.

Joe Smith said...

One more thing...the left's hero, Cesar Chavez, called illegal farmworkers 'wetbacks.'

They had a negative impact on his legal farmworkers' wages.

He was not a fan of illegal immigration.

Somehow the left conveniently omits that part of his biography.

Greg The Class Traitor said...

I haven't seen anyone discussing here the subtext that has the Lefties terrified:

All "government inspections" are "taking private property for public use."

What's the difference between ordering the growers to let union organizers on their property, and ordering restaurant owners to let health and safety inspectors on their property?

IMO, the majority of the members of the Court are not going to want to open that can of worms.

If the restaurant owner's "just compensation" is "he's allowed to keep his restaurant open", then why isn't the grower's "just compensation" that "he's allowed to have workers on his property"?

This would be why Sotomayor said to the growers' lawyer: “[D]on’t you win under Babcock?”

My prediction: 9-0 they win under Babcock, and everything else is ignored. No concurring opinions, as Roberts get everyone to agree to a cease fire

Matt Sablan said...

"What's the difference between ordering the growers to let union organizers on their property, and ordering restaurant owners to let health and safety inspectors on their property?"

-- One serves a relevant government interest (people aren't going to get sick and die from eating at the restaurant.) The other does not serve a compelling government interest (the government doesn't care if you're union or not.)

Yancey Ward said...

It is important to note that the government's position is that this isn't a takings at all, which is them just admitting there is no limiting principle involved. Now, I ask our resident leftists, can this be true? The same rationale can allow third parties rights of access to your homes by government decree. How would you like to be forced to listen to an NRA powerpoint presentation of gun rights 2 months a year in your living room, or just 1 hour?

narciso said...

Wasnt illegal labor being smuggledin by ranchers part of the subplot in harper?

DavidUW said...

Ah California organizing.

I remember being forced to be a member of the UAW. Why, because that's the union for graduate students, and we're forced to join because it's a closed shop state/slave state. I remember actually asking for and getting a refund for the political part of the dues at least, but as a grad student, I really couldn't afford what they sucked out of my stipend for no benefit to me.

Thieves.

California unions are assholes.

Matt Sablan said...

"How would you like to be forced to listen to an NRA powerpoint presentation of gun rights 2 months a year in your living room, or just 1 hour?"

-- Could a Catholic priest be allowed to preach at a Mosque? The opposite? After all, not only are they not taking, but they've got a First Amendment right to speak, just as much as the union has a right to assemble. What about PHYSICAL goods, and not just time/space? Is that different because if you take an apple from someone, it is gone forever, but if you use someone's space, they get it back when you're done?

Yancey Ward said...

Under the same allege right of power, the government could order you to house a homeless family on your property for 1 month/year, or 1 day/year, or all year long. President Shitforbrains could have ordered hotels and motels along the border to house the illegals at zero compensation if there is no limit to this kind of power. If you agree there is a limit to such power, then please tell us where you would set it?

Let me offer another hypothetical- there is a push to organize home healthcare aides. Should the government be allowed to order access for union organizers to such aides in grandma's kitchen?

Joe Smith said...

"I remember being forced to be a member of the UAW."

In the early '80s I was forced to join a union if I wanted the job. Not sure what I ever got for my money.

The job was more important than my opposition to the union so I did...

Btw, Captcha is shit again...

Achilles said...

Howard,

You people love the idea of blue collar workers as long as they know their place. No, no puede.

You just are not intelligent enough to have a conversation in good faith.

You do better than Inga. But that is a low bar.

You should try to improve yourself. You should try to be comfortable with who you are. While you are like this you just lash out and look like a petulant and somewhat dim child.

Your first step is accepting that you can be wrong.

Matt Sablan said...

If the government can order you to provide a meeting space and pay for union organizers... why can't it force you to pay for a union directly?

tommyesq said...

So if California Law said that any advertiser could walk into your living room once a year to give you their pitch, everyone should be OK with that? After all, what’s one hour a year with an obnoxious stranger in your personal space?

A more accurate analogy would be a law that says that a divorce lawyer can walk into you house once a year to pitch to your wife/husband why they should dump you.

gilbar said...

Blogger narciso said...
Wasnt illegal labor being smuggled in by ranchers part of the subplot in harper?

Why, Yes! Yes it Was
AND WHO was doing the smuggling (wait for it) A NEW AGE RELIGIOUS CULT

I watched that a month or two ago; and was surprised
how it fit in to today's issues
how pretty California USED TO be

MadisonMan said...

Where is the evidence that Justice Kagan asks good hypotheticals?

Matt Sablan said...

Kagan's hypotheticals are in the other article on voting rights.

Owen said...

Great conversation here. Thanks to all; even (or maybe especially) Howard, because it gets the dialectic going. And helps other discussants to sharpen their skill at intellectual skeet.

gilbar said...

Oh here's a good one
What if the US Army had a regulation that permitted soldiers to be quartered on your property one hour a day, one day a year; without your consent?

Joe Smith said...

"Great conversation here. Thanks to all; even (or maybe especially) Howard, because it gets the dialectic going. And helps other discussants to sharpen their skill at intellectual skeet."

Really? He's an uniformed bomb thrower. Maybe adding something to the conversation instead of ad hominem attacks...

tommyesq said...

If California passed a law saying that all employees must allow anti-union agitators into their homes for up to three hours 120 days per year, would that be okay? If the converse of the existing law is unacceptable, the existing law should be unacceptable.

Matt Sablan said...

"What if the US Army had a regulation that permitted soldiers to be quartered on your property one hour a day, one day a year; without your consent?"

-- There's an amendment about that.

DavidUW said...

Make the 3rd Amendment relevant again!

JaimeRoberto said...

We’ve already established that it's a taking. Now we are trying to determine the degree.

jg said...

what a low bar

Rusty said...

Owen said...
"Great conversation here. Thanks to all; even (or maybe especially) Howard, because it gets the dialectic going. And helps other discussants to sharpen their skill at intellectual skeet."
Uh. No. How much is Howard paying you?

Left Bank of the Charles said...

Here’s my hypothetical:

If California amended its laws of trespass to adopt the Scottish Outdoor Access Code, would that be a taking?

Jupiter said...

Owen said...
"Thanks to all; even (or maybe especially) Howard, because it gets the dialectic going."

Owen, Howard is a troll. I would think that is obvious. Certainly, Howard knows it.

Howard said...

Satisfaction is the end of desire Achilles

Howard said...

I'm very open about being a troll and about not reading or watching the news or reading Ann's posts or reading most of the comments actually.

Michael K said...

At least Howard doesn't clutter up the place with nonsensical links like Inga.

Howard said...

Also Sprach Doc Mike Karen

Greg The Class Traitor said...

Matt Sablan said...
"What's the difference between ordering the growers to let union organizers on their property, and ordering restaurant owners to let health and safety inspectors on their property?"

-- One serves a relevant government interest (people aren't going to get sick and die from eating at the restaurant.) The other does not serve a compelling government interest (the government doesn't care if you're union or not.)


"Nor shall private property be taken for public use without just compensation."

A "relevant government interest" is a "public use". No?

I didn't say the government couldn't order either of them. Neither are the plaintiffs in this case. They're just demanding their "just compensation" for the "taking".

So, what's the restaurant's "just compensation" for the "taking" of having to give government inspectors free access?

I see two ways this can go:
1: The way I predicted above. In which case the ruling should come down relatively soon

2: They actually try to address the Takings issue. In which case, it's the last opinion delivered, because it will be a very hard one

gilbar said...

Matt Sablan said...
-- There's an amendment about that.


That was kinda my point. try to pay attention.
thanx!

Tim said...

Jupiter, you are not clearly realizing my premise or you are just being an asshole. I do have a car, and a house. Can you block my driveway and prevent me from using that car for an hour? Almost certainly, without consequence. If you try it for a day, Algood PD will have your ass towed. If you cannot see the difference between what I proposed and your ridiculous straw man, then you do not want to see it.

Achilles said...

Howard said...

Satisfaction is the end of desire Achilles

Of course it is.

You cannot control what you want.

You allow your desires to be twisted by animal instincts. You choose the easy path over the honest path. You never address at a conscious level why you lie about the world around you not only to others but to yourself.

Thus it ever was.

Achilles said...

Tim said...

Jupiter, you are not clearly realizing my premise or you are just being an asshole. I do have a car, and a house. Can you block my driveway and prevent me from using that car for an hour? Almost certainly, without consequence. If you try it for a day, Algood PD will have your ass towed. If you cannot see the difference between what I proposed and your ridiculous straw man, then you do not want to see it.

There are always consequences.

Just because you do not get a brick through the wind shield does not mean you did not negatively affect someone.

Your problem is that you are selective in who you let abuse the property rights of others. Union representatives are not Government inspectors. Not even close.

If some private citizens can abuse property rights they all can.

One set of rules.

Or there are no rules.

Joe Smith said...

"Union representatives are not Government inspectors. Not even close."

Burglar after being caught by police at 2am in a house with silverware, jewelry, and cash spilling out of his pockets:

"But, but...I'm a union organizer. Yeah, that's the ticket."

Apologies to Jon Lovitz.

Greg The Class Traitor said...

Tim said...
I do have a car, and a house. Can you block my driveway and prevent me from using that car for an hour? Almost certainly, without consequence.

Wrong. if you blocked by driveway when I wanted to go out, I'd have a tow truck out, in less than an hour.

And your car would be towed, a nd you'd have to pay for it.

Cities can block the streets they own. Block a private street? Not without cost and consequence.

"Nor shall private property be taken for public use without just compensation"

it's often treated as meaningless words. But they aren't

The Godfather said...

Government taking private property through what are ostensibly regulatory impositions is a serious issue. Ever since Justice Holmes pontificated in Pennsylvania Coal v. Mahon that if regulation goes "too far" it might be a "taking", property lawyers have been searching for El Dorado, where they could sue the government for many dollars for regulation gone "too far". When I was practicing I've been on both sides of that issue. Property-rights advocates are deperate to nail down what constitutes "too far". This strikes me as a poor "test case" because the burden the requirement places on the landowners is pretty minimal, and because the landowners are not particularly sympathetic victims. In other words, they're likely to lose. Too bad.