Is the Supreme Court putting ‘a thumb on the scale for property owners’?

June 13, 2023 | By NICOLE W.C. YEATMAN
supreme court kagan

In her concurring opinion in Sackett v. EPA, Justice Elena Kagan—probably the sharpest rhetorician on the bench, especially when she’s disagreeing with her colleagues—complained the Court’s majority was putting “a thumb on the scale for property owners.”  

Well: Shouldn’t there be a thumb on the scale for property owners in the court of law? 

Or not a thumb on the scale, exactly—we can leave the scales of justice free of thumbprints. But when the government tries to wrest control over a piece of private property, shouldn’t there be a starting presumption in favor of the property’s owner? 

In criminal court, the accused has the presumption of innocence. That’s part of your fundamental right to a fair trial: The jury is instructed to start with the presumption that you did not commit the crime for which the government is prosecuting you—a wonderfully deferential starting position, given the government clearly believes you’re guilty. The Supreme Court has called the presumption of innocence “an instrument of proof” whereby an accused person’s innocence is automatically established “unless sufficient evidence is introduced to overcome the proof[.]”  

Shouldn’t there be a similar presumption in civil court? A starting presumption that establishes property owners’ right to control their own property? 

Of course, when it comes to certain favored rights, there is a starting presumption in favor of the individual. The court presumes you are allowed to express yourself. If the government tries to control your speech, it bears the burden of proving in court it has a compelling government interest and has narrowly tailored its actions to that interest. Restrictions on expression are reviewed under “strict scrutiny,” the highest standard of judicial review.  

But no such burden is borne by, say, the Environmental Protection Agency when it blocks you from building a house on your land. That’s what happened to Chantell and Mike Sackett: Several EPA officers showed up unannounced to the Sacketts’ property in 2007 and told them to stop construction, claiming their half-acre residential Idaho lot was considered “navigable waters” under the Clean Water Act and therefore couldn’t be developed.  

Even Justice Kagan found the EPA overreached in its conduct with the Sacketts: The Court ruled unanimously that the Sacketts’ land did not fall under the scope of the Clean Water Act.  

Where the Justices disagreed was on exactly what does fall under the Act. The Court’s majority said the EPA needs to provide “clear evidence that it is authorized to regulate in the manner it proposes” and that Congress must adopt “exceedingly clear language” when exercising power over “private property.” Here is where Justice Kagan complained about a thumb on the scale. 

But why shouldn’t the Court be protective of individuals’ property rights? Why should the right to acquire and use property be treated with any less respect than the right to free speech? Certainly, a man’s home should enjoy as much legal protection as the sign he erects in front of it. 

Property rights are not rights of property but of men: They are human rights. For the vast bulk of human history, people had no way to own the land they lived on. In medieval Europe, all land was property of the king and was held by noble lords, who allowed vassals to live and work the land in exchange for fighting power.  

The death of feudalism was a triumph for ordinary men: You no longer needed to be king to have a stake in the land beneath you.  

Yet remarkably, the government still sometimes treats property owners as mere feudal tenants, disempowered to make decisions about the land they live on. In another Supreme Court case this term, Tyler v. Hennepin County, the county pointed to a 13th-century law as justification for seizing and selling a grandmother’s condo over her modest property tax debt. The Statute of Gloucester, the county argued in its brief, “empowered lords to recover land… if occupants failed to pay feudal obligations for two years[.]” 

The Supreme Court Justices would hear none of it. “The taxpayer must render unto Caesar what is Caesar’s,” Chief Justice John Roberts wrote in the unanimous decision, “but no more.” 

If the Tyler and Sackett decisions show the Supreme Court is trending toward greater deference to private property owners—well, good. Since the Chevron decision of 1984, the Court has shown too much deference in the other direction, to federal agencies.  

So let’s not call it a thumb on the scale. Let’s call it what it is: a fair day in court for property owners.