“Viability” in Lucas v. South Carolina Coastal Council and Planned Parenthood v. Casey

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 attorneys 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 chunk of property from makes use of right down to no makes use of and from $1 million right down to $0, you have got 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 cause.

Deliberate 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, everybody however Chief Justice Roberts, at the least.)

I had by no means linked that two Supreme Court docket choices, 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. In fact, financial viability and fetal viability are very completely different ideas. Nonetheless, there’s some disconnect.

Lastly, Justice Blackmun’s dissent in Lucas consists of 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I’m 83 years outdated. I can’t stay on this Court docket ceaselessly, and after I do step down, the affirmation course of for my successor nicely might give attention to the problem earlier than us at this time.

Justice Blackmun probably missed the disconnect right here as nicely.