On the last day of 2020, Cato filed an amicus brief in this Supreme Court term’s big property rights case, Cedar Point Nursery v. Hassid, which will be argued next month. Cedar Point is a Fifth Amendment Takings Clause challenge to a California law that forces agricultural businesses to allow union organizers onto their property three times a day for 120 days of the year. We assert that such a physical violation of one of the key aspects of property rights — the power to exclude — warrants just compensation even if the taking is neither permanent nor continuous. And even if unionizing workers is a serious public need, unions have myriad ways to try to organize workers other than invading private property.
Well, last week it was the turn of California’s amici to file their briefs. One of those briefs was filed on behalf of five senators, led by Sheldon Whitehouse (D‑R.I.). You may recall that Whitehouse led a different group of senators on a brief in N.Y. State Rifle & Pistol Association v. City of New York, the Second Amendment case that was ultimately mooted out. “Perhaps the Court can heal itself before the public demands it be restructured in order to reduce the influence of politics,” he wrote ominously in that one.
In Cedar Point, Whitehouse doesn’t take aim at the Supreme Court itself — thank heaven for small favors — but instead targets the motives of petitioners and their amici, claiming that this is a self‐serving exercise to “to elevate private property rights over public safety and welfare.” Moreover, “we have seen flocks of ‘freedom‐based public interest law’ organizations that exist only to change public policy through litigation, and which often do not disclose their funders.… the cottage industry that facilitates, orchestrates, and accelerates those desired outcomes lures the Court into trespassing upon elemental protections of the Constitution.”
There’s more: “Backed by untold financial support from regulated industry interests that have long sought to hobble labor unions and the American regulatory system,” Pacific Legal Foundation (for whom Whitehouse has disdain going back 20 years, when he personally lost a Supreme Court case to them) and its fellow travelers, in this telling, are a corporate cabal plotting against the American way of life. “At least eleven of the amici who filed briefs in support of petitioners are funded by the same set of industry‐tied foundations and anonymous money groups,” citing Cato among others at page 18, footnote 4. Who are these shadowy groups? DonorsTrust, Donors Capital Fund, the Lynde and Harry Bradley Foundation, the Charles G. Koch Charitable Foundation, and the Sarah Scaife Foundation — in other words, charitable foundations of the type that fund all sorts of causes and organizations.
Where to begin with this? First, the Whitehouse brief sets itself squarely against strategic litigation, apparently disapproving the NAACP, ACLU, environmental groups, and a host of others who engage in public‐interest legal campaigns. So is it that this sort of activity is bad when it’s advocated by free‐market advocates and that deregulation is never in the public interest?
Second, despite Whitehouse’s idiosyncratic crusade against amicus brief funding, there’s also nothing fishy about foundations’ donating to think tanks and other nonprofit organizations involved in strategic litigation. It’s done on the left and the right, and affects cases involving big business, small business, and no business. Cato itself is funded mostly by individuals (75% in 2019) and while we do get some funding from foundations (20% in 2019), we can hardly do the bidding of donors whose identities we don’ t know. We also get a tiny bit of corporate funding (3% in 2019), which I hazard is less than Whitehouse gets.
Finally, on the merits of this case, the Whitehouse brief criticizes the “industry‐funded” Cato Institute for arguing that “all … interferences with a fundamental attribute of ownership” are takings. There, we are guilty as charged: It’s one thing to argue that Cedar Point doesn’t involve an interference with an element of ownership — the Supreme Court will resolve that — quite another to suggest that there are elements of property ownership that the government can interfere with without consequence.
Stay tuned for more of these shenanigans as Senator Whitehouse takes over the chairmanship of the Judiciary Committee’s Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights.
