Kavanaugh’s ‘real’ deal

A new report that looked at Supreme Court Associate Justice Brett Kavanaugh’s views on property and takings found he could be a key vote in upholding the property rights of individuals over the greater good of a community.

The report by Myers Mermel, chief executive of TenantWise, says to its clients that “Kavanaugh has a history of defending the rights of individuals.”

He could uphold cases in favor of land developers and against threatened species like the spotted owl, for instance, as he has already done in certain property rights cases.

What’s more, Kavanaugh could side in favor of the owners of historical buildings versus communities that want to preserve and protect them as-is forever — adding costs to renovations and leaving them perhaps unable to be rented, to paraphrase Mermel’s report.

Meanwhile, over the years, depending on the makeup of the bench, the high court has either leaned to the “utilitarianism” and “positivist” philosophies that recognize the power of the state to maximize the greatest good for the greatest number of people; or to the “natural rights” philosophy that empowers private owners, he theorized.

Mermel examined major Supreme Court property case rulings, including the city’s Penn Central case, which upheld the NYC Landmarks Law, and found that in general the rulings on the Fifth Amendment, or takings cases, have “been muddled.”

“Issues regarding height, bulk, transfer, density and limitations of Landmark buildings and historic districts could all be challenged under a new Supreme Court,” he wrote.

“The potential changes to the Landmarks Law could be beneficial to developers and adverse to Landmarks.”