University of the Pacific Scholarly Commons McGeorge School of Law Scholarly Articles McGeorge School of Law Faculty Scholarship 2013 The rP operty Jurisprudence of Justice Kennedy John G. Sprankling Pacific cGeM orge School of Law Follow this and additional works at: https://scholarlycommons.pacific.edu/facultyarticles Part of the Constitutional Law Commons, Judges Commons, and the Property Law and Real Estate Commons Recommended Citation John G. Sprankling, The rP operty Jurisprudence of Justice Kennedy, 44 McGeorge L. Rev. 61 (2013) This Article is brought to you for free and open access by the McGeorge School of Law Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in McGeorge School of Law Scholarly Articles by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. 03_SPRANKLING_VER_01_5-30-12_FINAL.DOC (DO NOT DELETE) 7/22/2013 2:32 PM The Property Jurisprudence of Justice Kennedy John G. Sprankling I. INTRODUCTION Justice Kennedy’s property jurisprudence has largely been neglected by legal scholars,1 a surprising omission given his pivotal role on the modern Supreme Court. In this Article, I offer a few reflections on the topic, without attempting to conduct a comprehensive analysis. Much like an artist painting a landscape in watercolors, I hope that a few analytical brush strokes will provide a quick—yet useful—impression of complex legal terrain. Two challenges immediately appear. First, property issues surface only rarely in constitutional law, either directly in the context of the Due Process, Takings, and Intellectual Property Clauses, or indirectly, on occasion, in decisions which primarily involve other topics, such as the First Amendment or the Fourth Amendment. Second, and more problematic, it is often difficult to identify Justice Kennedy’s personal views in such cases because he is almost always in the majority.2 It is axiomatic that the best way to know a Justice is to read his or her dissents. But Kennedy rarely dissents, leaving scholars to glean what they can, in particular, from the concurring and majority opinions that he has written.3 As a preliminary matter, we can draw four broad conclusions about Justice Kennedy’s property jurisprudence. First, he is a strong defender of private Distinguished Professor and Scholar, University of the Pacific, McGeorge School of Law. This Article is based on an address I gave on April 6, 2012, as part of a symposium sponsored by the McGeorge Law Review in honor of Justice Kennedy’s twenty-fifth year on the Supreme Court, entitled “The Evolution of Justice Anthony M. Kennedy’s Jurisprudence.” 1. For example, FRANK J. COLUCCI, JUSTICE KENNEDY’S JURISPRUDENCE: THE FULL AND NECESSARY MEANING OF LIBERTY (2009) and HELEN J. KNOWLES, THE TIE GOES TO FREEDOM: JUSTICE ANTHONY M. KENNEDY ON LIBERTY (2009) both discuss Kennedy’s jurisprudence in depth, but neither one discusses his approach to property. Indeed, the word “property” does not appear in the index of either book. COLUCCI, supra; KNOWLES, supra. To date, no book or article has examined Kennedy’s property jurisprudence as a whole. The only scholarly work that addresses his property jurisprudence in any depth is Michael C. Blumm & Sherry L. Bosse, Justice Kennedy and the Environment: Property, States’ Rights, and a Persistent Search for Nexus, 82 WASH. L. REV. 667 (2007), but that article merely discusses some of his Takings Clause decisions as they relate to environmental protection. See id. 2. See COLUCCI, supra note 1, at 1 (noting that Kennedy has been in the majority more than any other Justice). 3. See, e.g., Kenneth M. Murchinson, Four Terms of the Kennedy Court: Projecting the Future of Constitutional Doctrine, 39 U. BALT. L. REV. 1, 43 (2009) (observing that Kennedy’s six dissents during “the 2008 Term were the fewest of any Justice”). 61 03_SPRANKLING_VER_01_5-30-12_FINAL.DOC (DO NOT DELETE) 7/22/2013 2:32 PM 2013 / The Property Jurisprudence of Justice Kennedy property rights, with something of a libertarian bent.4 Second, he is at the center of the Court’s property jurisprudence, as in other areas. For example, during his tenure, the Court has decided fifteen significant cases on regulatory takings, and Kennedy has been in the majority in fourteen of those decisions—ninety-three percent of the time.5 Third, he is an incrementalist, generally reluctant to make sweeping changes based on ideology.6 Finally, he tends to favor fact-intensive tests that require case-by-case adjudication, rather than bright-line standards.7 In this Article, I explore three specific aspects of Justice Kennedy’s property jurisprudence that distinguish him from other current Justices on the Court: (1) the relationship between property and liberty; (2) the problem of defining “property”; and (3) the interplay between the Takings Clause and the Due Process Clause. II. PROPERTY AND LIBERTY “We cannot ensure liberty unless we also guarantee the right to own and acquire . and keep private property.”8 Liberty is the core of Justice Kennedy’s constitutional jurisprudence. As Frank Colucci has observed, “individual liberty, not equality, [is] the moral idea he finds central to the Constitution.”9 Kennedy stressed this point during his confirmation hearings: [T]here is a zone of liberty, a zone of protection, a line that is drawn where the individual can tell the Government: Beyond this line you may not go. Now the great question in constitutional law is: One, where is 4. See infra Part II. But see Stephen O’Hanlon, Justice Kennedy’s Short-Lived Libertarian Revolution: A Brief History of Supreme Court Libertarian Ideology, 7 CARDOZO PUB. L. POL’Y & ETHICS J. 1, 29 (2008) (“Justice Kennedy has not respected the fundamental importance of property rights to the same degree that libertarians do . .”). 5. See infra APPENDIX (listing these decisions). 6. See, e.g., Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 130 S. Ct. 2592, 2615, 2617–18 (2010) (Kennedy, J., concurring) (rejecting plurality’s effort to “announce a sweeping rule that court decisions can be takings” in part because “[i]t is not wise, from an institutional standpoint, to reach out and decide questions that have not been discussed at much length by courts and commentators”). 7. See, e.g., Kelo v. City of New London, 545 U.S. 469, 493 (2005) (Kennedy, J., concurring) (supplementing plurality’s deferential “public purpose” test in eminent domain cases with a fact-based test which would also consider whether “the transfers are so suspicious, or the procedures employed so prone to abuse, or the purported benefits are so trivial or implausible, that courts should presume an impermissible private purpose”). 8. Videotape: Archie Hefner Memorial Lecture—Property and Our Constitutional Tradition: Some Hobbesian Sticks in the Lockean Bundle (Anthony M. Kennedy 1991) (on file with the Gordon D. Schaber Law Library, University of the Pacific, McGeorge School of Law) [hereinafter Hefner Lecture]. 9. COLUCCI, supra note 1, at 5. 62 03_SPRANKLING_VER_01_5-30-12_FINAL.DOC (DO NOT DELETE) 7/22/2013 2:32 PM McGeorge Law Review / Vol. 44 that line drawn? And, two, what are the principles that you refer to in drawing that line?10 Colucci argues that “Kennedy’s ideal of liberty transcends constitutional text and tradition,”11 an interpretation which helps explain his decisions on such controversial subjects as abortion, the death penalty, gay rights, and school prayer.12 Consistent with this mindset, Kennedy often approaches property rights cases from the perspective of liberty—more so than any other current Justice.13 Here we can identify two key themes, each with a long history in property jurisprudence. First, he views private property as a prerequisite for political liberty, and thus, for democratic self-government.14 As Thomas Jefferson and other Founders reasoned, property rights give citizens the economic security necessary for them to exercise independent political judgment.15 Second, Kennedy suggests that property is necessary for the full development of the individual, that is, for true personal liberty.16 This justification for property is traditionally associated with the German philosopher Georg Hegel,17 but was more recently espoused by Margaret Jane Radin as the personhood theory of property.18 The political liberty theme is reflected in Kennedy’s concurrence in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection.19 There, Florida landowners complained that the state’s beach restoration project converted their ocean-front lots to ocean-view lots, and asserted that the Florida Supreme Court decision upholding this action was a “judicial taking” of their property.20 Although the United States Supreme Court had never previously held 10. Hearings on the Nomination of Anthony M. Kennedy to be Associate Justice of the Supreme Court of the United States Before the S. Comm. on the Judiciary, 100th Cong. 86 (1987) (statement of Anthony M. Kennedy, Judge, 9th Cir.) [hereinafter Hearings]. 11. COLUCCI, supra note 1, at 8. 12.Id. at 1–7. 13. The discussion below interprets Kennedy’s view of property in consequentialist terms, that is, the concept that we recognize property because it produces socially desirable results. Kennedy would presumably argue as well that society should recognize property as an end in itself, as a matter of justice. 14. For a discussion of this justification for property, see JOHN G. SPRANKLING, UNDERSTANDING PROPERTY LAW 19–20 (3d ed. 2012); D. Benjamin Barros, Property and Freedom, 4 N.Y.U. J.L. & LIBERTY 36, 37 (2009). 15. See generally Gregory S. Alexander, Time and Property in the American Republican Legal Culture, 66 N.Y.U. L. REV. 273 (1991); Stanley N. Katz, Thomas Jefferson and the Right to Property in Revolutionary America, 19 J.L. & ECON.