Lucas v. South Carolina Coastal Council held that the federal government should present compensation if a regulation deprives the proprietor of all “economically viable use” of his property. Lucas was argued on March 2, 1992 and Justice Scalia handed down the bulk opinion on June 29, 1992. Here’s a colloquy from that argument:
JUSTICE BLACKMUN: We’re throwing across the time period no financial viability of this property. . . . Viable is an efficient medical time period, it is not a authorized time period, however the legal professionals have taken it over and the judges too. What do you imply by financial viability? . . .
MR LEWIS: So I believe if you go down and you are taking a bit of property from makes use of all the way down to no makes use of and from $1 million all the way down to $0, you will have a taking beneath our Structure no matter what–
JUSTICE BLACKMUN: That is hardly the medical definition of an old-time time period of being viable.
Viability was apparently on Justice Blackmun’s thoughts in Lucas. With good purpose.
Planned Parenthood v. Casey was argued the next month on April 22, 1992, and was selected June 29, 1992. And we all know all-too-well that the Casey plurality adopted the viability line as a part of the undue burden framework. (Effectively, everyone but Chief Justice Roberts, at the very least.)
I had by no means linked that two Supreme Court docket selections, selected the day, each turned on the idea of viability. In Lucas, the bulk opinion per Justice Scalia, concluded that “viability” was a helpful line for the Takings Clause; in dissent, Justice Blackmun thought “viability” was not a helpful line. In the meantime, in Casey, the plurality relied on the “viability” line, whereas the dissenters rejected this line. After all, financial viability and fetal viability are very totally different ideas. Nonetheless, there’s some disconnect.
Lastly, Justice Blackmun’s dissent in Lucas contains this sentence:
There may be nothing magical within the reasoning of judges lengthy useless.
Such a sentence is apiece with one other declare Justice Blackmun wrote on June 29, 1992:
I’m 83 years previous. I can’t stay on this Court docket eternally, and after I do step down, the affirmation course of for my successor nicely could concentrate on the problem earlier than us in the present day.
Justice Blackmun seemingly missed the disconnect right here as nicely.