In its ruling today in Cedar Point Nursery v. Hassid, the Supreme Court held that a California regulation that requires agricultural employers to allow union organizers onto their property for up to three hours per day, 120 days per year, constitutes a per se physical taking under the Fifth Amendment’s Takings Clause (which applies against the states via the 14th Amendment). The Court divided 6 to 3 on ideological lines.
Chief Justice Roberts’s excellent opinion is not only a victory for the agricultural employers who brought the challenge and for property rights generally. It is also a vindication of Ninth Circuit judge Sandra Ikuta and her seven colleagues (Callahan, R. Nelson, Bade, Collins, Bress, Bumatay, and VanDyke) who joined her dissent from the Ninth Circuit’s denial of rehearing en banc, as well as of Judge Edward Leavy, who dissented from the panel decision (majority opinion by Judge Richard Paez, joined by Judge William Fletcher).
This is at least the fifth time this Term that the Supreme Court has vindicated conservative Ninth Circuit judges who have objected to that court’s failure to conduct en banc rehearing of suspect panel rulings. The other four I’m aware of, along with the objecting judges who have been vindicated, are:
United States v. Cooley—Collins, joined by Bea, Bennett, Bress
Garland v. Dai—Callahan, joined by Bybee, Bea, M. Smith, Ikuta, Bennett, R. Nelson, Bade, Collins, and Lee; Collins, joined by Bybee, Bea, Ikuta, Bennett, R. Nelson, and Bade; and O’Scannlain and Trott
Shinn v. Kayer—Bea, joined by Bybee, Callahan, M. Smith, Ikuta, Owens, Bennett, R. Nelson, Bade, Collins, Lee, and Bress
Nestle v. Doe—Bennett, joined (in whole or in part) by Bybee, Callahan, Bea, M. Smith, Ikuta, R. Nelson, Bade
Look for one or two additions to this list in the next few days.