John Roberts is all business in his conservatism

By Joan Biskupic, CNN legal analyst & Supreme Court biographer

Chief Justice John Roberts reminded America of his conservative bona fides on Wednesday as he touted property rights and rejected a California regulation that allows labor union organizers temporary access to agriculture property.

The decision was a manifestation of one of Roberts’ core interests, tied to Fifth Amendment protection against government takings “without just compensation,” dating all the way back to his years in the Ronald Reagan administration and then in private practice representing business interests.

Wednesday’s decision also offered a significant manifestation of the new 6-3 conservative-liberal ideologically split court. In his opinion for the majority, Roberts eschewed the caveats and narrow approach he has brought to other areas of the law — notably social policy dilemmas — to achieve cross-ideological consensus.

That approach, slowing a right-wing revolution as more conservative justices have joined the bench, along with his votes since 2012 to uphold Obamacare, have tempered Roberts’ image in the public eye.

But the 2005 appointee of Republican President George W. Bush is still fundamentally conservative. And he has consistently sided with business over unions and with property owners over government regulators.

The addition of Justice Amy Coney Barrett, succeeding the late liberal Justice Ruth Bader Ginsburg, has arguably complicated Roberts’ stewardship in some areas of the law as he tries to prevent a far-right shift. But when it comes to cases involving the business community, the chief justice’s hand has only gotten stronger.

The new case centered on a California Agricultural Labor Relations Board regulation giving unions access to agricultural property up to three hours a day during four months of the year for organizing workers before or after work and during lunch breaks.

As Roberts canvassed past cases to support his rejection of the regulation, he wrote, “The upshot of this line of precedent is that government-authorized invasions of property — whether by plane, boat, cable, or beachcomber — are physical takings requiring just compensation. As in those cases, the government here has appropriated a right of access to the growers’ property, allowing union organizers to traverse it at will for three hours a day, 120 days a year.”

He was joined by the rest of the conservative bloc: Justices Clarence Thomas and Samuel Alito, along with the three appointees of former President Donald Trump: Neil Gorsuch, Brett Kavanaugh and Barrett.

This newly reconstituted bench still has eight more rulings left in the 2020-21 session, including a dispute over voting rights protections from Arizona. In several decisions in recent months, Roberts has taken a moderate path to try to reinforce the legal status quo or barely move the law.

Wednesday’s property rights case was different. The Roberts majority declared that the mandate that agricultural employers permit union access amounts to a “per se taking” requiring compensation under the Constitution.

Opinion reinforces Roberts anti-union jurisprudence

The decision reinforces two lines of conservative-controlled cases at the Roberts Court: those enhancing property rights and those diminishing the authority of labor unions, as occurred three years ago when the justices struck down state laws permitting public-employee unions to collect fees from non-union members to support collective bargaining activities.

Both lines of emphasis have divided the Republican-appointed conservatives against the Democratic-appointed liberals. Two years ago, when Roberts wrote a 5-4 opinion letting landowners sue in federal court over state eminent domain actions without first going to state court, liberals, in an opinion by Justice Elena Kagan, declared the decision “smashes a hundred-plus years of legal rulings to smithereens.”

The dissenters on Wednesday, led by Justice Stephen Breyer, scoffed at Roberts’ emphasis on an owner’s “right to invade,” adding in parentheses “whatever that might mean.” Dissenters drew a line between permanent and temporary access to property and contended the temporary access required by the California regulation fell short of “the classic taking” when government has directly appropriated private property or ousted the owner.

Dissenters also argued that the majority’s legal framework would threaten many ordinary state regulations, such as those covering the environment and public safety.

Roberts rejected that warning as he overall emphasized “the right to exclude.”

“(W)e have stated that the right to exclude is ‘universally held to be a fundamental element of the property right,’ and is ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property,” he wrote.

His 20-page opinion delved into all manner of property takings and cited myriad commentary, from Blackstone in 1766, to then-Associate Justice William Rehnquist, his mentor, writing in a 1979 takings case.

A classic confrontation

Wednesday’s dispute centered on growers in northern California, Cedar Point Nursery v. Hassid, offered a classic confrontation of property and business interests versus union and worker concerns.

Union backers highlighted the benefits of the longstanding regulation that allows organizers to reach seasonal, largely migrant farmworkers. They described the cost to agriculture employers as minimal because of the time limits.

Among those organizations joining the growers was the Chamber of Commerce, which said the duration of access permitted was more relevant to how much compensation was due, not whether a per se takings violation existed.

Agreeing with the employers and reversing lower court judges, Roberts wrote that a “physical appropriation” rises to the level of a taking, whether it is permanent or temporary, whether intermittent or continuous.

“The access regulation appropriates a ‘right to invade’ the growers’ property,” he said, adding that, “rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties the owners’ right to exclude.

The chief justice swatted back Breyer’s contention that the court’s opinion would undercut important regulatory power, saying “unlike standard health and safety inspections, the access regulation is not germane to any benefit provided to agricultural employers or any risk posed to the public.”

Breyer and fellow dissenters, Justices Sonia Sotomayor and Kagan, differed regarding the benefits of the pro-union law.

“Labor peace (brought about through union organizing) is one such benefit, at least in the view of elected representatives,” Breyer wrote. “They wrote laws that led to rules governing the organizing of agricultural workers. Many of them may well have believed that union organizing brings with it ‘benefits,’ including community health and educational benefits, higher standards of living, and (as I just said) labor peace.”