« Cass Sunstein: Experiments of Living Constitutionalism
Michael Ramsey
| Main | Anthony Bellia & Bradford Clark: The Constitutional Law of Interpretation
Michael Ramsey »

01/20/2023

New Supreme Court Cases of Originalist/Textualist Interest
Michael Ramsey

Last week the U.S. Supreme Court agreed to hear eleven new cases, at least two of which have originalist/textualist significance.

(a)  Groff v. DeJoy is expressly a bid to overrule the preposterous holding of the Burger Court in Trans World Airlines v. Hardison that the phrase "undue hardship" in Title VII's protections against religious discrimination means just "more than a de minimis cost."  Josh Blackman comments at Volokh Conspiracy: "May the 'de minimis' test go the way of Trans World Airlines."  Agreed! (And I bet the Court will too.)

More generally I'd like to see the case cut back on the often-stated (but inconsistently followed) canon that overruling statutory precedent should carry an especially high burden.  The Court's obligation is to get the law right, subject to the usual constraints of precedent (whatever those may be), not any more or less than that.

(b) Tyler v. Hennepin County, Minnesota is a takings case that turns on the meaning on "property" in the Fifth Amendment.  Also at Volokh Conspiracy, Ilya Somin has a summary and discussion of the case, including this statement of the facts from Tyler's attorneys at the Pacific Legal Foundation:

As an elderly widow living alone, Geraldine Tyler was doing just fine in the one-bedroom condo she owned in Minneapolis. That is, until 2010, when a rise in neighborhood crime and frightening incidents near her home alarmed Geraldine and her family and prompted her hasty move to a safer area, where she rented an apartment. 

Once Geraldine moved, she could no longer afford the property taxes on her condo in addition to the rent on her apartment. The taxes piled up, and Tyler accrued a $2,300 debt. In 2015, when the total tax debt, including penalties, interest, and fees, was $15,000, Hennepin County, Minnesota, seized the condo and sold it one year later for $40,000. Instead of keeping the $15,000 it was owed and refunding Geraldine the sale surplus, the county kept all of the $40,000. 

The county and the lower court relied on a state statute abolishing property rights in this situation, arguing that the Constitution only protects property as defined by state law (so there was no taking because Tyler had no property interest in the residual equity).  Professor Somin notes that the Sixth Circuit reached a conflicting result in a similar case, and comments: 

[The Sixth Circuit] ruling is part of a longstanding debate over the extent to which the property rights protected by the Takings Clause are purely defined by state law (in which case the state can often avoid takings liability simply by redefining them), or whether they are also defined by some combination of general legal tradition and natural law. The Sixth Circuit  is right to conclude that broader legal principles constrain the states here. But I would add that, at least as a matter of original meaning, states are also constrained by natural law understandings of property rights. I briefly cover this point in this article (pp. 52-53), and also in Chapter 2 of my book The Grasping Hand.

Given the high value the Founders placed on property rights, it would be strange—to say the least—if these constitutional rights were left entirely at the mercy of state governments to redefine as they please, because state law protects them and plays a key role in defining their scope. 

Sounds right to me, and I would think (without having looked at it too closely) that the Court is likely to agree.  Otherwise states could save themselves a lot of money by declaring that no one has a property right in any land the state decides it needs.