Feldman: Supreme Court decides it's stuck in 1875

U.S. Supreme Court Chief Justice John Roberts, left,

U.S. Supreme Court Chief Justice John Roberts, left, joined by Justices Clarence Thomas (second from left), Sonia Sotomayor (center front), Elena Kagan (rear) and Antonin Scalia listen to the National Anthem during the 57th presidential inauguration ceremonial swearing-in at the U.S. Capitol in Washington on Jan. 21, 2013. (Credit: Getty Images)

One of the great pleasures and benefits afforded by the Supreme Court is the illusion of historical continuity. The court's elegant building is a good example: it looks as old as the Capitol - maybe as old as the Acropolis - but it only dates to 1935. The same goes for one or two Supreme Court opinions each year, in which the court pretends it's the same institution that has always existed, not a rotating body of new justices bound by historical circumstance.

Monday's lone decision, Brandt Revocable Trust v. U.S., is an object lesson in this important form of historical make- believe. The court traced its logic back to the great era of railroad expansion in the mid-19th century - and in so doing told us more about its vision of itself than about railroads or U.S. history.

The case itself was a property dispute, and its legal origins really do go back to 1875, when Congress passed a law granting railroads a right-of-way 200 feet wide across public lands to encourage rail construction. The petitioner in the case, the Brandt Trust, owns an 83-acre parcel in Fox Park, Wyo., surrounded by the Medicine Bow-Routt National Forest. (The land was the site of an old saw mill owned by the trust's creator, Melvin Brandt, which closed in 1976.) The land is held subject to a right-of-way granted in 1908 to the Laramie, Hahn's Peak and Pacific Railroad. The railroad was never economically efficient - you can find pictures under the heading Ghost Town Photos - and in 2006 its successor owners finally shut it down and took up the ties and rails.


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That's when the federal government stepped in. It told the owners of land along the railroad, in essence, "1908 is calling. It wants your right-of-way back." According to the Interior Department, once the railroad was no longer using the right-of- way, it should have reverted back to the government that granted it in the first place.

So far, so logical: what the government giveth it should be able to taketh away, and the land in question was certainly given by the government in the first place, as was the right-of- way. All the other parcels along the railroad line settled with the government or didn't bother to argue their case. But the Brandt trust had a creative argument to make: It said that the right-of-way was just an ordinary easement, and under common law principles you learn in the first year of law school, an abandoned easement ceases to exist. When the railroad abandoned the right-of-way, it didn't go back to the government; it just disappeared. The district court and court of appeals both said nice try, rejecting the claim and holding for the government.

The Supreme Court reversed 8-1, and held in favor of the Brandt trust. Here's where things start to get really nostalgic. The court said it was resting its decision on a 1942 Supreme Court case, Great Northern Railway v. U.S. In that case, a railroad had discovered oil beneath its right-of-way, and wanted to drill. The Franklin Delano Roosevelt administration argued that the right-of-way granted to the railroad under the 1875 law didn't cover mineral rights - because it was just an ordinary easement. The court, manned by eight (count 'em) Roosevelt appointees, agreed, keeping the drilling rights for the government.

As Chief Justice John Roberts depicted it in Monday's decision, the government was hoist by its own petard. It "loses that argument today," he wrote, "in large part because it won when it argued the opposite before this Court more than 70 years ago." Having said the right-of-way was just an easement when it suited the government's interests, the government could not now claim the right-of-way was more than easement when it wanted its rights back.

Of course, as Justice Sonia Sotomayor pointed out in her solo dissent, the court could easily say that railroad rights- of-way are special. The right-of-way, after all, was created by that famous 1875 statute, not by the common law, so there was no reason to insist that common law easement rules should apply.

For good measure, Sotomayor pointed out that there's actually a practical consequence to the government's decision. Lots of former railroads have been converted to paths for biking, jogging and walking: "Lawsuits challenging the conversion of former rails to recreational trails alone may well cost American taxpayers hundreds of millions of dollars." Environmentalists, Sotomayor was saying, should view the decision as a defeat.

Why, then, did eight justices vote against bike paths, not to mention the government? The reason is the value of historical continuity. The court was telling the government, "you can't play fast and loose with us - you just said the right-of-way was an easement!" In reality, of course, it was the Roosevelt administration that said it 72 years ago to nine long-gone justices. But pretending that the court is a continuous "we," and that the Obama administration is the same executive as FDR's, emphasizes the continuous nature of political authority.

One of the most important fictions of the common law was that the king had two bodies, a "body natural" that dies like everybody else and a "body politic" that is immortal and contains the powers of government which never die. To us, the fiction of our own immortal, collective body politic may seem like nonsense on stilts. But on what other ground, really, are "we the people" the same ones who made our Constitution? Nostalgia makes us feel warm and cozy, but historical continuity is more than just an hour of the Antiques Roadshow: It's a foundation of political faith that we aren't completely ready to jettison.

Noah Feldman, a law professor at Harvard University and the author of "Cool War: The Future of Global Competition," is a Bloomberg View columnist.

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