Normally denials of petitions for certiorari pass by in relative silence. The general expectation is that the Supreme Court takes very few cases each year, and most of those that it takes involve matters of administrative and public law that are of concern to federal government and its many distinct agencies.
Many people, myself included, hoped that this inexorable trend would change with the petition for certiorari that James and Jeanne Harmon filed challenging the constitutionality of New York City’s rent stabilization laws. Harmon had tirelessly promoted his cause to everyone who would listen, and when New York City was requested to answer the petition for certiorari hopes rose. When the case was held for further reflection, they rose yet again. But in the end the unexplained denial of certiorari, without a visible dissent, indicated that it was business as usual in the Supreme Court.
It is important to understand what this tells us about the current attitudes of the Supreme Court. All too often, we discuss–as in connection with the Affordable Care Act–the deep divisions between the conservative and liberal justices. But we do not often talk about the strong agreement across that political divide on questions pertaining to property rights.
The nub of the difficulty is this. Every member of the Supreme Court comfortably works within the dominant administrative law paradigm. Their major task is to make sure that the system does not spin out of control on a variety of procedural issues. But none of them will ask on principled grounds why there is any form of administrative regulation in this area in the first place. That is especially painful in dealing with questions of pricing, where the regulatory solutions come out in a distant second place.
The key government officials have thrived in this environment. Exhibit A is this reaction to the decision:
“The court's decision is consistent with longstanding precedent that affirms the city and state's authority to enact these laws, which are an integral part of the city's effort to provide affordable housing to New Yorkers,” said City Council Speaker Christine Quinn, in a statement. “Now, the city's rent regulation system can proceed unfettered, as we continue to ensure affordable housing is available to New Yorkers.”
The dubious premise behind this quotation is that the system has worked to ensure the supply of affordable housing. The huge administrative cost of running the apparatus, the massive disparities in treatment, the painful point that the low rents called for under the ordinance help create the very shortage that the regulations are said to relieve are just not in the mental frame of Ms. Quinn or any other rent control supporter. The system will never be dislodged from within the City’s political process. Now that the flank attack has been rebuffed, it won’t be undone any other way. An open wound in New York City’s body politic has received the implicit imprimatur from a Supreme Court that does not think that property rights belong on its intellectual and judicial agenda.