Property and the Roberts Court

Abstract

How do property owners fare before the Roberts Court? And why? This Article is the first comprehensive analysis of the property jurisprudence of the Roberts Court. Based on an examination of the Court’s property-related decisions issued between Chief Justice Roberts’ appointment and Justice Scalia’s death, it reveals that property owners almost always win in civil disputes with government entities, but usually lose in criminal cases. Under the leadership of Chief Justice Roberts, the Court has reinterpreted constitutional provisions and applied federal statutes in a manner that substantially expands the protection for property. Four core themes help to explain how this shift has occurred. The Court has increasingly: (1) “propertized” the Constitution; (2) enlarged protection for homes; (3) based decisions on distrust of government; and (4) shifted the boundaries of what constitutes “property.” The Article concludes by examining how the Court’s approach to property issues will evolve in the post-Scalia era.

Keywords: Supreme Court, Roberts Court, property law, constitutional law