The Supreme Court of the United States heard oral arguments on Monday in Cedar Point Nursery v. Hassid, a case about the union rights of farmworkers. The high court’s decision has potential for broad impact on property rights, which could lead to an impact on several other areas of law. If the justices’ attitudes toward the petitioners during oral arguments was any indication, though, the Court will be siding with the unions.
Petitioners are Cedar Point Nursery and Fowler Packing Company, two California fruit sellers. They are challenging a California statute requiring them to allow labor organizers onto their property. The law mandates that allowing the union organizers onto farms (three times a day for 120 days each year) is necessary to reach otherwise-inaccessible farmworkers.
The fruit sellers say the law illegally grants an easement, and that under the Fifth Amendment they are entitled to compensation for what it calls a “per se taking.” Central to the case is the precise framing of the petitioners’ argument: that the specific right violated is the “right to exclude unwanted persons” from their property. It is this aspect of the litigation that threatens sweeping repercussions.
If, as petitioners argue, the right to exclude is a fundamental right, other laws abridging this right may also be affected. Fundamental rights trigger heightened legal scrutiny, and regulations interfering with such rights rarely survive. Indeed, a fundamental right to exclude could mean any regulation requiring a landowner to let someone on their property might be in danger. This could affect the validity of anti-discrimination laws, inspection regulations, investigatory practices, and more. Recognizing the case’s potential impact are briefs from over 30 amici in the case.
Moreover, the case is proceeding against an intriguing legal backdrop. The Court decided a landmark union case in 2018, ruling squarely against the union. The case was decided 5-4, with Justices Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsburg, and Stephen Breyer dissenting.
As Vox’s Ian Millhiser alluded to on Twitter, the bench was practically hostile toward Cedar Point’s arguments.
So far, at least, the Cedar Point oral argument is not going well for the bad guys.
— Ian Millhiser (@imillhiser) March 22, 2021
Right out of the gate, Chief Justice John Roberts posed concerns about the far-reaching implications of the farm owners’ argument. Roberts asked petitioners’ attorney Joshua P. Thompson whether, under his logic, “reasonable government inspections” would always constitute the same deprivation of rights. Roberts drew an equivalence between the government’s interest in promoting peaceful labor relations and safety inspection, as both benefit the public.
Thompson’s answer was grounded in history.
“Routine government inspections and administrative searches would not be affected,” he explained, “because the government has the right at common law to do that.”
“Were there a lot of union organizers at common law?” quipped Roberts in response.
Predictably, Justices Stephen Breyer and Sonia Sotomayor seemed in no mood for the argument that California’s labor law should be considered a per se taking of property.
Pressing Thompson on his argument that California’s regulation interfered with his clients’ property rights, Breyer asked, “there are dozens and dozens and dozens of statutes that allow things… [such as government inspections, such as] inspecting the coal mines at least four times a year… Are all those long lists of statutes unconstitutional?”
When Thompson attempted to persuade the Court that a ruling in his favor wouldn’t cause regulatory chaos, Breyer brought up another example. If, some time in the future, people had private spaceships or driverless cars, a state might legislate inspections to occur on private property. “They had no spaceships at common law,” Breyer remarked.
Thompson responded, arguing that the justice’s example wasn’t on point, as it related to searching, as opposed to unionizing. Breyer was unconvinced.
“They send someone out there to talk to workers to find out what the conditions are, for example. They’re searching for conditions, they’re searching to see whether they’d like to belong to a union. They can’t do that? What’s the difference?” he queried.
Later, Justice Sotomayor picked up with a similar line of questioning. Noting that the Court refused to apply a per se rule in the past, the justice demanded of Thompson, “then you are putting at risk all of the government regimes that permit for nuclear power plants. There are inspections almost on a daily basis. ” Quoting the late Justice Ginsburg, Sotomayor reminded counsel, “there are nearly infinite ways in which government actions can affect property interest.”
Some justices, however, focused their skepticism on the property-law basis of the fruit producers’ argument. Justice Clarence Thomas (perhaps indicating a propensity to decide the case on other than Fifth Amendment grounds), pointed out an issue with the petitioners’ argument: while they contend that the California statute creates an easement for which compensation is due, there’s never been any finding that an easement actually exists. Thomas asked Thompson what criteria the Court should apply in deciding whether a regulation interferes with a property right.
“Does it have to be an interest that is recognized under state law?” Thomas asked, “Or could it be just something recognized under common law?”
Thomas also appeared to share Justice Breyer’s concerns, asking Thompson, “you said that reasonable searches were OK. How would you define a reasonable search in your case?
Thompson did his best to refocus the Court on the crux of his argument, answering, “the government isn’t searching, it’s allowing third parties to come on and proselytize.”
Justice Elena Kagan continued Thomas’ line of questioning, further pressing Thompson on whether the right to exclude is really a recognizable property interest. “I know what it says,” said Kagan, “but I don’t think that counts as a discrete property right.” Kagan continued to distinguish a right to exclude from traditional property interests, such as easements, fees, end estates.
Justice Brett Kavanaugh took a different path to a similar place of skepticism.
“I’m a bit mystified by some of the arguments here,” he told Thompson, “because it seems like you’re asking us to reinvent the wheel.” Recounting a 1956 precedent, Kavanaugh said the Court already decided how to balance property rights against union rights, and questioned why Thompson is making a novel argument when his clients would likely have prevailed under the more historical rule.
Only Justices Neil Gorsuch and Samuel Alito — both known for siding against unions in the past — created a sharp contrast for the anti-union position in the case.
That doesn’t surprise me. Alito hates them for practical reasons (they support causes/candidates he opposes). Gorsuch, presumably, has a deep philosophical objection to the idea of collective action by labor.
— Greg Lipper (@theglipper) March 22, 2021
Alito helpfully paved the way for Thompson to argue that a characterization of the California law as an easement, while not necessary, is powerfully helpful to his clients’ argument.
The internet noticed as things got worse for the unions as the questioning made its way to Justice Gorsuch.
Gorsuch asks the petitioners to address the claim that they are seeking a "revolutionary" rule that would undermine all government regulatory regimes. Sounds very sympathetic.
— District Sentinel (@TheDCSentinel) March 22, 2021
Gorsuch provided a welcome introduction to Thompson, sarcastically inviting, “I’d like you to respond to the charge that this would be revolutionary and the end to all regulatory regimes.”
Slate‘s Mark Joseph Stern picked up on the anti-union sentiment coming from the two justices.
The justices are hearing arguments in this (dangerous and frightening) case now, and it sounds like Gorsuch hates unions even more than Alito. I did not think it was possible for any person to hate unions more than Sam Alito! https://t.co/xTlHbyzwdX https://t.co/p6YPagX59n
— Mark Joseph Stern (@mjs_DC) March 22, 2021
When the proceedings turned to California Solicitor General Michael J. Mongan’s arguments, the bench was noticeably warmer, even if not entirely willing to accept the state’s arguments.
Chief Justice Roberts pressed Mongan on just how far regulations like the one in question might go. Noting that the statute authorizes a “limited number” of organizers to enter the property, Roberts asked, “What do you do if there’s more than one union that wants access? Does each union get its own 120 days?” Mongan responded that while it is theoretically possible that multiple unions exercise rights under the law, creating frequent use of the fruit-sellers’ land, such a situation has not yet been even close to reality.
Justice Breyer then pointed out a weakness in California’s argument: whether a regulation is “excessive” is not what’s relevant. If, as petitioners argue, the interest created really is an easement, it would require compensation as a classical property interest. Mongan responded, however, that the regulation is not really a land use regulation, but rather, one about a specific line of business.
Most hostile to California’s argument was noted union-skeptic Justice Alito. “Both you and Mr. Thompson have line-drawing challenges here,” remarked Alito, as he provided the example of a town easement across private property to access a public beach.
“You would concede that that’s a per se taking, right?” asked the justice.
“Yes, I think that under any standard … that would be a taking,” Mongan conceded before pointing out the difference. Mongan followed up, explaining to Alito, “That doesn’t give us much heartburn, cause that would be something we would pay for in any event.”
“If you’re not willing to concede that a permanent easement across someone’s property… is a per se taking,” he told Mongan, “then I don’t know where your argument is going.”
Justice Amy Coney Barrett pushed Mongan on the practicality of his position.
“What is the big deal here?” she asked. “If the severity goes to compensation as the petitioners claim, why would it be that big of a deal for California to say to the union, ‘listen, to compensate for the taking, if you want access, you pay $50?’ What’s wrong with that?”
[image via Alex Wong/Getty Images]
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