John Roberts, radical environmentalist & central planner

This has gotten some coverage, though not much: John Roberts played a significant role in turning back, at least for the present, the takings revolution.  While at Hogan & Hartson, Roberts represented the government respondent in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (2002), handling the Supreme Court phase of the case after it had been very ably litigated in the Ninth Circuit by the public interest environmental and land use firm for which I was honored to practice, Shute Mihaly & Weinberger in San Francisco.  For those outside the small circle of takings nerds, Tahoe-Sierra, more than any other recent decision, established the Court’s retreat from an invigorated regulatory takings doctrine. 

In holding that a temporary development moratorium implemented for planning purposes did not constitute a temporary total diminution of value (and thereby qualify for heightened judicial scrutiny under Lucas v. South Carolina Coastal Council), the Court, by a 6-3 margin (whopping by regulatory takings standards, at least until the quietly stunning 9-0 decision in Lingle v. Chevron this past term), announced and enforced fairly significant, categorical limits on what threatened to become an increasingly complicated, anti-regulatory doctrine.  The Court didn’t exactly provide total clarification, and little of what it said was entirely new, but the force and tenor of the Court’s restatement of a limited regulatory takings doctrine, and the fact that both of the moderate conservative justices joined it, made it the most significant regulatory takings decision since Lucas.  Indeed, Tahoe-Sierra will probably prove to be far more influential than Lucas has been, unless a more thoroughly conservative Court decides to reverse direction again.

Roberts has been maligned by the left and especially by pro-choice advocates for his work in the office of Solicitor General under Bush I, and his critics generally refused to concede that an attorney could distance himself from the interests of his client.  (Given the voluminous documentation of Roberts’s conservatism, especially from his work in the Reagan Administration, they're probably not wrong here.)  But at least in this instance, property rights advocates might have analogous reasons to be concerned – and indeed at least some are, as this Pacific Legal Foundation press release demonstrates, as does this long thread of freeper shock and horror upon the posting of the PLF article on the Free Republic bbs.  And environmentalists and planning advocates can be confident that the otherwise conservative Chief Justice at least understands and respects their arguments – something that cannot be said of every Bush appointee.