A number of sane people around the commentariat have been up in arms over the recent decision handed down by the Supreme Court in Murr v. Wisconsin. And with very, very good reason. We’ve dealt with this case here before as it’s played out through the lower courts, but as a refresher it deals with the situation encountered by Donna Murr and her siblings in Wisconsin. The family owned two small parcels of land along the St. Croix River. They had a cabin on one of the lots and the adjoining property was left vacant as an investment. But when they attempted to finally sell the vacant lot in 2004 they learned that the state had changed the rules on them, making it impossible to sell the land to anyone other than the county unless they combined the properties and relinquished the entire package.

The property in question had been valued at $400K. The county – the only entity legally entitled to buy it – offered them $40K.

Because the state, through changes in laws which did not apply when the family acquired the land, had completely gutted its worth, the Murr family sued to be properly compensated under the Takings Clause. With this week’s decision, those hopes are dashed. Eric Boehm at Reason explains what this is doing to the rights of property owners.

When governments issue regulations that undermine the value of property, bureaucrats don’t necessarily have to compensate property holders, the Supreme Court ruled Friday… The ruling could have implications that go well beyond the 2.5 acres of land in Wisconsin. Several western states filed amicus briefs in the case on behalf of the Murr family (as did the Reason Foundation, which publishes this blog). Though states like Nevada and Arizona did not have a direct interest in the Murrs’ ability to sell their vacant land, they saw the case as having important implications for conflicts over federal lands. Many state governments own contiguous lots and large bodies of water near areas owned by the federal government (military bases, national parks, etc). If those government bodies are allowed to merge contiguous lots for regulatory purposes, the federal government could impose severe restrictions on state land and wouldn’t have to pay consequences, warned Ilya Somin, a professor of law at George Mason University who authored the amicus brief on behalf of those western states.

What we are seeing here is a continuation of what I still maintain is possible the worst ruling from the Supreme Court in the history of the nation, Kelo v. City of New London. That was the dark day when the Supremes ruled that the idea of “public use” in the Takings Clause could be reinterpreted into a Reverse Robin Hood scenario by defining it as the far more ambiguous “public benefit.” When that case was decided in 2005 the principal dissent was written by O’Connor, but in a separate dissent, Associate Justice Clarence Thomas wrote the following:

Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not.

This ruling is yet another weakening of the Takings Clause. And the reason I say this is a continuation of Kelo is that you need only look at who is voting on these rulings. In Kelo, the 5-4 decision was delivered by Stevens, Souter, Ginsburg and Breyer with the tie-breaking vote cast by Kennedy. Now, In Murr, the 5-3 decision came from Breyer, Ginsberg, Kagan, (who replaced Stevens under Obama) and Sotomayor (who replaced Souter under Obama) with both the tie-breaking decision and the written opinion coming once again from Kennedy. Anyone seeing a pattern here?

It was 5-3 because Gorsuch wasn’t involved with the original hearing and didn’t vote. But even if he had, the Fifth Amendment still would have lost 5-4 yet again. It’s not enough just to keep hold of the seat that Justice Scalia occupied. Kennedy is unreliable in too many instances when given a choice between more power for the government over the individual or less. The other four liberals are lost causes, apparently never having seen a case of bigger government which they couldn’t celebrate. We need a real majority on the Supreme Court with conservative, small government principles in their hearts or these erosions of fundamental rights will continue.