SCOTUS Nominee Kagan on Property Rights

During the Senate confirmation hearings held this week, Supreme Court Nominee Elena Kagan did provide a somewhat direct response to Senator Grassley’s questions concerning her position on property rights. From the exchange between Sen. Grassley and Ms. Kagan:

GRASSLEY: The president who appointed you, in “Audacity For Hope,” his book, said our Constitution places the ownership of private property at the very heart of our system of liberty. Do you agree with that statement?

KAGAN: Well, I do think that property rights are a foundation stone of liberty, that the two are intimately connected to each other in our society and in our history.

As Professor Ilya Somin points out in his analysis (at the Volokh Conspiracy blog) of the exchange between Grassley and Kagan, although it’s nice to hear that Kagan believes that property rights are a “foundation stone of liberty…intimately connected to each other in our society and history” and that “the job of the courts.. with respect to [property] rights, as any other, is to ensure that government does not overstep its proper bounds.” It is, however, not suggestive that she will rule in favor of property rights when such cases are before the Court. As Professor Somin explains in his writings, the Court has recently provided only minimal protection to property rights as compared to other constitutional rights and it is unlikely Kagan would stray from the Court’s “oft-repeated pattern.”

Nonetheless, we also have seen a sign of progress for property rights protection and agree with Prof. Somin’s point that property rights has now become a topic upon which Senators will question SCOTUS nominees, particularly because property rights are “a foundation stone of liberty.”

For a more complete transcription of Sen. Grassley’s questioning of Ms. Kagan and a much more detailed analysis of same, visit the Volokah Conspiracy blog here. Additionally, to review Prof. Somin’s analysis of the recent history of the Supreme Court’s property rights jurisprudence see “Taking Property Rights Seriously? The Supreme Court and the ‘Poor Relation’ of Constitutional Law.”

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