The 8-1 decision in Horne v. USDA is a resounding victory for property rights. Eight Justices agreed that the New Deal raisin racket amounts to a per se regulatory taking under Loretto, even though it involved personal rather than real property. This argument seemed like such a slam dunk, and one that any first-year property student would reach. But then we have Justice Sotomayor’s solo dissent, which hovers between ignoring and rewriting Loretto v. Teleprompter.

In this case, the city required homeowners to install wires on their buildings to facilitate the construction of a cable-television network. The Court, per Justice Marshall, held that the installation of the cables constitutes a “permanent physical invasion” (in contrast with a “temporary physical occupation”), and finds that there is a “per se” taking. No balancing tests are necessary. I tell my students, if there is a hammer and nail, or bulldozer involved, it’s a per se taking.

Justice Sotomayor’s dissent seeks to redefine how Loretto. She admits as much.

In my view, however, Loretto—when properly understood—does not encompass the circumstances of this case because it only applies where all property rights have been destroyed by governmental action. Where some property right is retained by the owner, no per se taking under Loretto has occurred.

In #SCOTUS speak, “In my view,” and “properly understood,” mean the other 8 Justices have not properly interpreted Loretto.

The entire premise of the dissent is that a per se taking under Loretto occurs only where “each and every” stick in the bundle is destroyed:

This strict rule is apparent from the reasoning in Lor- etto itself. We explained that “[p]roperty rights in a physical thing have been described as the rights ‘to possess, use and dispose of it.’” Id., at 435 (quoting United States v. General Motors Corp., 323 U. S. 373, 378 (1945)). A “permanent physical occupation” of property occurs, we said, when governmental action “destroys each of these rights.” 458 U. S., at 435 (emphasis in original); see ibid., n. 12 (requiring that an owner be “absolutely dispossess[ed]” of rights). When, as we held in Loretto, each of these rights is destroyed, the government has not simply “take[n] a single ‘strand’ from the ‘bundle’ of property rights”; it has “chop[ped] through the bundle” entirely. Id., at 435.

She repeats at least 10 times in the 12 page opinion (to similar effect as Schuette’s repetition of “race matters”) that to find a violation of Loretto, “each and every property right” must be “destroyed.”

1. But Loretto sets a high bar for such claims: It requires that each and every property right be destroyed by governmental action before that action can be said to have effected a per se taking.
2. In my view, however, Loretto—when properly understood—does not encompass the circum- stances of this case because it only applies where all property rights have been destroyed by governmental action
3. But whatever else one can say about the Order, it is not a per se taking if it does not result in the destruction of every property right.
4. When, as we held in Loretto, each of these rights is destroyed, the government has not simply “take[n] a single ‘strand’ from the ‘bundle’ of property rights”; it has “chop[ped] through the bundle” entirely. Id., at 435.
5. Simply put, the retention of even one property right that is not destroyed is sufficient to defeat a claim of a per se taking under Loretto.
6. Indeed, we would not have used the word “destroy” in Loretto if we meant “damaged” or even “substantially damaged.”
7. I take us at our word: Loretto’s strict requirement that all property interests be “destroy[ed]” by governmental action before that action can be called a per se taking cannot be satisfied if there remains a property interest that is at most merely damaged. That is the case here; accordingly, no per se taking has occurred.
8. The fact that at least one property right is not destroyed by the Order is alone sufficient to hold that this case does not fall within the narrow confines of Loretto.
9. But if there is a property right that has not been lost, as the Court con- cedes there is, then the Order has not destroyed each of the Hornes’ rights in the reserve raisins and does not effect a per se taking.
10. One virtue of the Loretto test was, at least until today, its clarity. Under Loretto, a total destruction of all prop- erty rights constitutes a per se taking; anything less does not.

Here is the relevant passage from Loretto:

Property rights in a physical thing have been described as the rights “to possess, use and dispose of it.” United States v. General Motors Corp., 323 U. S. 373, 378 (1945). To the extent that the government permanently occupies physical property, it EFFECTIVELY destroys each of these rights.

Why did I put the word “effectively” in BOLD? Because it appears NOWHERE in Justice Sotomayor’s opinion in her discussion of Loretto. Nowhere. Not once. Justice Sotomayor’s entire dissent is premised on Loretto holding that only a complete destruction of “each and every” property right amounts to a per se taking. But Justice Marshall wrote that it “effectively” destroys these rights. Effectively means not entirely. Loretto requires–as the kids would say–a figurative, not literal destruction.

Consider how she faults the majority for making this “breezy” assertion:

The Court’s contrary conclusion rests upon two funda- mental errors. The first is the Court’s breezy assertion that a per se taking has occurred because the Hornes “lose the entire ‘bundle’ of property rights in the appropriated raisins . . . with the exception of ” the retained interest in the equitable distribution of the proceeds from the disposi- tion of the reserve raisins. Ante, at 8–9. But if there is a property right that has not been lost, as the Court con- cedes there is, then the Order has not destroyed each of the Hornes’ rights in the reserve raisins and does not effect a per se taking.

Again, this comes back to her taking Loretto out of context, by insisting that every single conceivable right is actually destroyed. This is such a rudimentary mistake. It’s striking that she would have the chutzpah to charge her other eight colleagues with not “properly” understanding the case.

Were the word “effectively” not enough of a clue that the complete devastation of all rights is not necessary, the familiar facts of Loretto (which the dissent doesn’t even deign to engage) makes this point clear. The building on the Upper West Side was forced to install a wire down the side of the building, and a box on the roof. Of course the building owner still had other sticks in the bundle (the apartments were fit for dwelling). But, with respect to the portions of the building where the screws and wires were installed, there was a permanent physical physical invasion, and thus a per se taking. As the Court recognized:

For example, in Loretto, we held that the installation of a cable box on a small corner of Loretto’s rooftop was a per se taking, even though she could of course still sell and economically benefit from the property. 458 U. S., at 430, 436. The fact that the growers retain a contingent interest of indeterminate value does not mean there has been no physical taking, particularly since the value of the interest depends on the discretion of the taker, and may be worth­ less, as it was for one of the two years at issue here.

There are a lot of other weaknesses to this decision (not the least of which she conflates regulatory and physical takings as the majority points out), but this attempt to ignore or recast Loretto is indefensible. Back in 2009, Ilya Somin wrote that then-Judge Sotomayor’s eminent domain decision on the 2nd Circuit, Didden v. Village of Port Chester, was the “worst federal court property rights decision in recent memory.” I think Horne tops Didden.

Further, this isn’t the first time Justice Sotomayor insisted that 8 other Justices screwed up precedent. Joan Biskupic brought to light this inside story the 8-1 vote in Daimler–where RBG called her out for missing precedent:

For weeks, Sotomayor had seen drafts of Ginsburg’s opinion as it circulated among the justices. She knew she was about to be a public target. But she would have the courage of her convictions— perhaps stubbornly, misguidedly— yet with confidence enough to be the one in an 8– 1 vote. A week before the Daimler opinion was handed down, in January 2014, Sotomayor told an audience of more than a thousand that to bolster her courage, she often thought about the worst thing that could happen when she undertook a challenging endeavor. She would conclude: “You know something … so what?”

The appropriate reaction to the Horne dissent is also, “so what.”