Hi everyone -
Happy Urban Tech Thursday! Welcome back to the best place for folks interested in how cities and the innovation economy overlap🤝. Sorry for being a tad late this morning — I was putting the final touches on today's edition.
Today’s issue is long but worth the read for all the insights and resources you learn for thinking about the Supreme Court’s impact on cities.
Given this week's news of Amy Coney Barrett’s confirmation, I wanted to dedicate this entire edition to examine how the Supreme Court of the United States (SCOTUS) has historically impacted urban policy.
I'll also look ahead at some topics that SCOTUS experts shared might come before the Court. Strap in.
No matter your political leanings, it's impossible to deny the historical magnitude of Barrett's confirmation to the highest Court. It's been said before, but Trump nominating and confirming three conservative justices to the Supreme Court (and a bunch more federal judges) might be his most significant legacy. I'll let the historians and political pundits figure that out. You're here to learn how SCOTUS impacts cities.
While legislators and executives across government levels typically are the ones driving — or hindering — urban policy, the Supreme Court's role needs to be kept top of mind given this week's news.
This is how SCOTUSblog Editor James Romoser broadly summarized the Court's influence on cities to me:
“The Supreme Court has played a central role in shaping various areas of urban policy. These areas include the broad authority of cities to enact zoning ordinances, the scope of the eminent domain power, protections against housing discrimination, and limits on the ability of local school districts to remedy historical segregation.”
While the influence of SCOTUS on cities is undeniable, I’ll explain why historically SCOTUS isn’t the primary driver in evolving legal theory that directly impacts cities.
Before I dive in, a few notes:
Next week’s issue will be a Q&A with Urban Mobility Expert Ashwini Chhabra of Electric Avenue. Ashwini is an alum of the Bloomberg administration, Uber, and Bird, so he has a great understanding of how policy teams in the mobility space move these topics forward (pun only slightly intended).
Monday, I experimented and sent out an edition with the 9 City and Tech stories to read. I couldn’t include the usual urban tech news in last week’s editions (also unable to have today).
Urban Tech’s cadence is something I’m actively thinking about at the moment. I know your inboxes are incredibly busy, so I wanted to get your feedback before changing anything. By answering the brief questions at the survey below, you’ll be entered into a random drawing for a $25 Visa gift card, which I hope you’ll use at a local business.
Let me know your thoughts quickly by responding to this 4 question survey (hopefully takes you 30 seconds to do).
A Long Thing: SCOTUS Impact on Cities
Before going too far, I’ll acknowledge I’m not a lawyer nor an expert in constitutional law. This piece aims to pull key insights from some of the leading experts on SCOTUS and urban law and then connect the dots with some current urban tech trends.
When I began to research this piece, I imagined my sources as my personal Urban Tech SCOTUS brain trust, which I was curating to share their expertise with you.
Without these folks, and LexisNexis, this piece wouldn’t have happened. I’ve also linked to their work, which you should 100% also check out if you enjoy this piece:
Nestor Davidson, Albert A. Walsh Professor of Real Estate, Land Use and Property Law at Fordham University
Thomas Keck, Syracuse University Maxwell School’s Michael O. Sawyer Chair of Constitutional Law and Politics
[I took 2 semesters of constitutional law w/ Prof. Keck, so he’s been helping me with this piece even before Urban Tech existed.]
Nicole Kuklok-Waldman, A land-use expert who teaches Urban Planning law at USC’s Price School of Public Policy
She also founded and runs ColLAborate, which provides a variety of services for businesses, including advocacy work, community outreach, and entitlement processing.
Donald Smythe, Chief Justice Roger J. Traynor Professor of Law at Case Western School of Law
James Romoser, SCOTUSblog Editor — SCOTUSblog in my opinion, and many others, is the best source for keeping up with the Supreme Court.
Next, I’ll provide some key legal context and resources for understanding urban legal questions.
Key Context + Definitions
Keep in mind: Despite SCOTUS being the highest Court,the U.S. federal judiciary system made up of 94 district (trial) courts, 13 circuit courts (courts focused on reviewing lower court cases), and one Supreme Court (most of the time reviews appeals of lower courts, but also acts as a trial court for major constitutional issues).
This is all to say, while this piece is on SCOTUS specifically, the federal judiciary as a whole is a complex structure with many different actors that impact urban law.
What is the role of SCOTUS?
Donald Smythe, an expert on real estate and property law, provided me with a clear way of thinking about the Court for this piece's purpose." In the United States, the Supreme Court is the ultimate arbiter of the line between individual rights and liberties and government powers."
The tension between individual rights and government powers is often the core theme of the most prominent cases impacting urban policy. Zoning laws are maybe the most straightforward example to point towards.
The government restricting what you can build is a clear tension of individual property rights and government power. Here is how Smythe explains it, "A regulation that restricts land uses eliminates certain rights in the [from the owner] and a regulation that imposes affirmative duties on the landowner adds certain obligations."
Before getting into significant historical cases, I'm going to define some of the major themes that come up in SCOTUS cases that significantly impact cities.
Legal Theories and Terms
Originalism v. Living Constitution
This is a defining theme of constitutional interpretation.
"Originalists argue that the meaning of the constitutional text is fixed and that it should bind constitutional actors. Living constitutionalists contend that constitutional law can and should evolve in response to changing circumstances and values." [Source]
If you've studied constitutional law, the tension between Originalism and the idea of a living constitution is likely familiar. This is probably the key ideological difference between liberal and conservative justices on the Court.
Nicole Kuklok-Waldman shared a thought that I loved about why Originalism is particularly problematic for cities and urban planning:
As far as planning and land use, Originalism is toxic. When the Constitution was drafted, slavery was legal. Women couldn't vote. Many people couldn't own land. Why a return to this is considered glamorous is not only troubling, but it completely ignores the truth that, as Maya Angelou says, "When you know better, you do better." Originalism literally fails to consider our ability to learn and change as humans, something that separates us from other species. Why would we want that?
Due Process Clause: 5th and 14th Amendments
A common legal theory you'll see in real estate or SCOTUS cases impacting cities is due process.
Both 5 and 14 contain a due process clause that safeguard the government denying you of life, liberty, or property without "fair treatment through the normal judicial system / process".
I must point out though, that constitutional law plays out much differently in the real world than in theory. This point is essentially the idea of law in action vs. law on the books.
Police Power
The U.S. conditional theory of Police Power (not the kind that rides in squad cars with sirens) is: "the inherent power and constitutional authority of the government to adopt and enforce regulations and laws to promote public health, safety, morals, and general welfare."
Takings
A taking is when the government seizes private property for public use using Police Power.
Physical takings are when the government literally takes property from an owner. Taking can be regulatory in nature, meaning that the government restricts the owner's rights, leading to a similar impact (think zoning).
De jure and de facto discrimination
American Historian Richard Rothstein helps us define these terms:
"We've persuaded ourselves that the residential isolation of low-income black children is only "de facto," the accident of economic circumstance, personal preference, and private discrimination.
But unless we re-learn how residential segregation is "de jure," resulting from racially-motivated public policy, we have little hope of remedying school segregation that flows from this neighborhood racial isolation."
Okay, let’s start to take a closer look at how SCOTUS impacts cities and urban policies.
SCOTUS Influence on Cities
Every SCOTUS case or constitutional law can be tied back to urban policy in some way if you work hard enough. I'm going to focus on the significant themes you should care about as readers interested in cities and tech.
Despite SCOTUS playing an integral part in shaping cities, experts I spoke to made sure to highlight the impact state legislatures and state constitutional law have on contemporary urban issues.
Prof. Davidson, a legal expert at Fordham, explained SCOTUS "hasn't actually been central to the legal story" of cities. "The struggle about the scope of local authority power is really more a question of state constitutional law." Davidson isn't minimizing the impact of SCOTUS on cities. He's correctly observing the relationship between SCOTUS and the other key players in urban policy.
Local and state government (executive, legislative, and judicial branches) actions have consistently driven urban law's evolution and innovation more directly than the Courts. Some historical examples include The Fair Housing Act and The Urban Development Act of 1970. A more contemporary example is the city of Minneapolis moving to innovate economic development by limiting the restrictions of archaic single-family zoning restrictions
Historical Supreme Court Cases Impacting Cities
After connecting with roughly ten lawyers, legal scholars, and SCOTUS experts, the following cases are the most compelling cases they mentioned regarding contemporary urban issues' historical significance.
Based on my conversations and research, two cases (Euclid v. Ambler and Brown v. Board) were in a class of their own for impacting cities. Other than those two, the list is in chronological order. I'm not going to get into the cases' specific facts for length purposes, but there are many free online resources like OYEZ for looking at the cases more closely.
Euclid v. Ambler (1926)
If you've ever studied local zoning, then you may have read the Euclid case. This how USC Professor Nicole Kuklok-Waldman explained the significance of Euclid to me:
Starting with Village of Euclid v. Ambler Realty Company, the Supreme Court established the right of the state to use [government police powers] to preserve the health, safety, and welfare of citizens. The state has this power because it was not reserved to the Federal Government and therefore, via the tenth Amendment, it is given to the states.
The regulation of land falls within this provision. But as we know, land use and development isn't just about land. It is about immediate and long-term wealth, family, education, access, safety, redistricting and gerrymandering, and the American Dream... As a result, regulation of land use leads to a plethora of other issues, whether fair housing, equal access to education, or even the ability for the government to require certain housing types with certain features.
Brown v. Board of Education (1954)
This case prohibited cities (and all local governments, of course) from de jure (see the first section) racial segregation in public schools. Note private segregation in schools and organizations was still allowed even after Brown. It would take years before the Court addressed constitutional questions around private segregation.
While education was the scope of this case, its impact on Constitutional Law is much broader since it struck the principal of "separate but equal" that allowed racial discrimination across the country. [This essay from Cass Sunstein describes its broader societal impact]
San Antonio Independent School District v. Rodriguez (1973):
Steve at SCOTUSblog detailed the significance of the case as:
"[The Court] upheld a public school financing system based on local property taxes after parents from a low-income district challenged the financing system as unconstitutional. The Court held that education is not a fundamental right under the 14th Amendment.
Public school financing is an inherently local issue since local property taxes are a vital funding source for public education.
Shelley v. Kraemer (1947)
This case was a landmark case because it barred housing covenants, or contractual agreement restricting the purchase, leasing, or occupancy of a unit based on race or religion. Covenants were tools used by developers and HOAs to entrench housing serration.
Penn Cent. Transp. Co. v. New York City (1978):
This case created the modern framework for regulatory taking. It set further rules for judging how the government compensates property owners in instances of taking.
The Court would revisit this area in future cases like Nollan v. California Coastal Commission.
Urban Issues this Court Could Impact
So, what topics or legal questions related to cities and urban policy could the Court take up? After talking to my SCOTUS brain trust, below are the issues they told me to keep an eye on for Urban Tech. One area might stand out a tad more than the rest.
The Census and Illegal Immigration
Professor Keck and the other experts I spoke with were particularly concerned about how the Court with Barrett might handle Trump's efforts to exclude non-citizens from the Census count.
Immigration and cities are intrinsically tied together. Keep in mind this stat: "In 2017, the 37.8 million immigrants who lived in the top 100 metro areas made up about 17.4 percent of their overall population." So any cases on immigration (legal or illegal) this Court takes up will impact cities more than suburbs and rural areas. By not counting illegal immigrants, cities' populations will be undercounted, negatively impacting state and local funding distribution.
ELECTIONS (!!!!!!)
I recognize I'm not the first or the last to mention this, but leading up to Tuesday and throughout writing this piece, elections and SCOTUS were at the forefront of my brain.
I'm going to editorialize on the impact of elections on cities for a second — please bear with me (skip the next 3 paragraphs if you'd like).
No matter your political beliefs, if you're reading Urban Tech I'm going to assume you agree with me that elections have consequences (If not, I'd love to interview you!).
Elections matter for cities. More importantly: they matter for the real people who live in cities and towns. I'm 25, and 12/25 or ~48% of my life has had a president who lost the popular vote has occupied the White House. I'm counting both Bush terms despite him winning the popular vote in 2004.
You probably already understand or have heard how this dynamic screws over urban voters, especially in left-leaning states like New York or California. But, it also impacts more conservative states like Nevada and Florida that have a majority urban population.
As someone who cares about cities and the issues they are facing, I'd be remiss not to encourage you to vote. Please do it!
Back to the Court. SCOTUS is already making decisions on impacting Tuesday's election, like the recent case involving Pennsylvania. We will have to wait to see what role it play for Tuesday and how Barrett might affect the election as a whole.
Local Signs
One quirky area I found in my research: Multiple sources mentioned one topic that I didn't expect — the Constitutionality of local billboards.
They shared that a topic SCOTUS would likely hear a case on might involve the Constitutionality of local government leasing billboards to advertisers on city properties. They explained it to me as a First Amendment issue primarily, but you can read more from this 2015 case on the matter. The case Struck down a municipal sign ordinance that imposed more onerous rules for certain types of disfavored messages. Made clear that strict scrutiny applies to these sorts of sign regulations
Tech and the Digital Divide
Even with the signs pointing to the tech industry facing more regulatory scrutiny (Google Antitrust case), I think it will be some time before we see antitrust or monopoly cases of this kind make it to SCOTUS. Legal claims of this nature take years to make their way through the system.
One tech area that both Kuklok-Waldman and Davidson saw as likely to end up with SCOTUS soon involves equity and internet access. Kuklok-Waldman described the inequity issues as:
When children are forced to use the WiFi outside of a Taco Bell during a pandemic, you start to consider access issues. … Consider apps and the displacement of regulated industries that were designed to provide fair access. For example, Taxi company franchises require taxis to pick up anyone within a service area, but Uber and Lyft drivers don't have to do this.
How does this impact neighborhoods that might have a specific reputation? Some people only access the internet through a phone or can't get high-speed Wi-Fi in their communities; how are they supposed to work in white-collar jobs from home during a pandemic when they lack access? The digital divide is real, and, interestingly (and coincidentally?), often has the same lines as those illegal redlines from the 1940s and 1950s.
Municipal Finance
One area that I didn't get to address is the Supreme Court's impact on local finances. Due to COVID, there is a significant decrease in tax revenue (property taxes, sales taxes, etc.) for cities.
While the economic ramifications of COVID in the short run are easy to see on commercial real estate or the travel industry, everyone interested in cities needs to be mindful of COVID's implications on our cities' budgets. NYC is getting the bulk of media coverage on this topic, but it's happening across the country and globally.
Fordham's Nestor Davidson explained that the Supreme Court with Barrett could look to return to this area of constitutional law. He noted Clarence Thomas, specifically as an originalist who might curtail cities' power navigating the budget crisis.
Cities (typically controlled by Democrats) across the country are going to be scrambling to address their finances, and it'd be easy to see a Republican-controlled state legislature or governor challenge a city's efforts to ease the budget crisis in the courts.
Davidson used my home state of Texas as an example of where he could see this happening. Governor Greg Abbot has increasingly tried to exercise his power against cities and local leaders in numerous policy areas. It's a great example of tensions between state and local, which I've discussed some, but it deserves its own, given its prevalence in urban tech topics.
Final Thoughts
In the first edition for Urban Tech, I examined The Color of Law by Richard Rothstein. Issues of inequity or structural discrimination are built into the American system, so they are also baked into our cities' fabrics.
At times, the Supreme Court has broadened local powers, but as the Urban Tech brain trust explained to me, increasingly the Court in many ways has looked for ways to curtail the power of local government either by deferring to the individual state's constitutional law, or siding against big metros. [I say big cities because many cases involve major metros, but the impact spreads across localities of all sizes.]
I want to leave you with a final thought from Professor Nicole Kuklok-Waldman that articulates why you should keep a close eye on this Court:
"… One of the biggest challenges...relates to de jure impacts to underrepresented communities. As Amy Coney Barrett stated during her confirmation hearing, Brown v. Board of Education is well-settled law. But you can't look at this nation's schools and tell me that they are fully integrated. As we continue to understand the issues related to race in this country and how they manifest in wealth and real estate issues, we continue to uncover the framework that makes it impossible for people to succeed when they start with nothing or very little. How does one borrow money with no collateral to start a business or buy a house? "
We will have to see what issues this Court takes with the addition of Barrett. It's also important to point out that SCOTUS nominees can be unpredictable in interpreting the Constitution once on the Court — but I am sure that this era of the Roberts Court will decide on significant cases with urban and tech implications (I plan to write follow up pieces once the impact is a little more clear.)
Please also continue to share Urban Tech!
Have a good weekend ✌️
JT