Submitted by Barry McDonald
The panel moderator, Prof. Tom Metzloff (Duke), introduced the panelists—Professors Chris Lund (Wayne State), Margaret Hu (Penn State), Michael Dimino (Widener), Akram Faizer (Lincoln Memorial) and Barry McDonald (Pepperdine). He then provided some brief reflections about the October 2020 Term.
Prof. Lund kicked off the case presentations by discussing the Court’s decisions in the Fulton and Tandon free exercise cases, and the Court’s shifting notions of what constitutes discrimination against religion warranting strict scrutiny review. Next, Prof. Hu discussed the Court’s decision in Bronovich, and its implications for voting rights going forward.
Prof. Dimino then spoke about three cases in which the Supreme Court chose not to decide controversial issues or decided them in narrow ways that provided little guidance for future cases. First, the Supreme Court decided not to hear Republican Party of Pennsylvania v. Boockvar, which challenged the Pennsylvania Supreme Court’s three-day extension of the statutory deadline for the return of mail-in ballots. The U.S. Supreme Court thus left undecided the extent of state legislatures’ power to determine the manner of selecting presidential electors. Second, in Americans for Prosperity v. Bonta, the Court applied “exacting scrutiny” and invalidated a California law that forced charities to disclose their donors. But the Justices were deeply divided over whether it was proper to apply exacting scrutiny instead of a different standard, and the Court’s use of a standard between strict scrutiny and intermediate scrutiny is bound to lead to difficulties in application. Third, the Court ruled in Mahanoy Area School District v. B.L. that a public high school could not discipline a student for a vulgar social-media post made on a Saturday and off of school grounds. The Court noted three reasons why courts should be “skeptical” of schools’ attempts to regulate students’ off-campus speech, but refused to create a test to govern future cases. Thus, the Court appears to be taking an exceptionally cautious approach to deciding cases, preserving its own flexibility but providing little guidance to lower courts and the country.
Next, Prof. Faizer discussed how the Cedar Point Nursery decision broadened the meaning of a governmental taking under the Fifth and Fourteenth Amendment in a manner that is disquieting to liberals, but narrower than most conservatives might have hoped. The decision by Chief Justice Roberts reversed the lower courts to conclude that a California regulation mandating that agricultural employers allow union organizers onto their property for up to three hours a day, 120 days a year, constitutes a physical taking of the property owners’ land requiring the payment of just compensation. The Court did so, however, by concluding that the regulation constituted a physical taking by the government and did not narrow the current jurisprudential chasm between the very low threshold of occupation required in a physical taking and the very high threshold of regulatory burden imposed on a property for it to constitute a regulatory taking. Indeed, the Court analogized Cedar Point to Loretto v. Teleprompter Manhattan, where the Court mandated just compensation be paid to landlords based on a New York law that mandated landlords to accommodate the installation of cable tv equipment and wires on their property, regardless of how minimal the property intrusion. Disappointingly for conservatives, the Court did not reverse Penn Central Transportation Co. v. New York City, which concluded that just compensation need not be paid to a property owner based on a government regulation when the property owner still has, among other things, the ability to obtain a reasonable return on the investment.
The Court distinguished restrictions on how a business generally open to the public may treat individuals on premises, highlighted that isolated physical invasions are not takings and are instead to be treated as trespasses to property, that government requirements that property owners cede a right of access as a condition of receiving certain benefits are not takings, and that social services-related government inspection regimes are not to be treated as takings. Justice Breyer’s dissent, joined by his fellow liberals, Justices Sotomayor and Kagan, raises the obvious concern that Cedar Point adumbrates a means of debilitating government by improperly treating a government regulation as a physical taking. However, by insisting that the regulation is a physical taking, the Chief Justice’s decision, perhaps disappointingly to many conservatives, has taken a very narrow approach to advancing property rights.
Last, Prof. McDonald provided a preview of the major abortion and Second Amendment cases the Court has agreed to take up next Term. He discussed how the Court has agreed to take a new look at fetal viability as the key milestone for when abortion bans can kick in under the Roe-Casey framework (see Jackson Woman’s Health v. Dobbs). He also spoke about NY State Rifle and Pistol Assn v. Corlett, where the Court will decide whether the right to possess a firearm in the home for self-defense recognized in Heller and McDonald/ extends to the right to carry concealed weapons in public for general self-defense purposes.