How the Supreme Court Could Rework Real Estate

Many things the US real estate industry takes for granted depend on Supreme Court decisions made over the past century. From zoning to eminent domain to rent control, our regulation of the built environment is based on a handful of bedrock Supreme Court cases from the past hundred years.

In almost all of those pillar cases, the court’s decision upheld a broad view of the government’s role in our lives—to zone, to regulate rents, to take private property for the public good, and more.

But the current Supreme Court has a very different view of government’s place in society. Specifically, the Court’s 6-3 conservative majority is perhaps the most strict constructionist in anyone’s living memory, believing that the Constitution only provides government certain narrowly-defined powers.

Thus far, the real estate industry has largely avoided the current Court’s direct attention even as the regulatory foundation of other industries has been shaken—by last summer’s Chevron decision, for instance. But it’s increasingly likely that a proactive court, with the backing of the current administration, will turn its eye toward the built world.

Today’s letter will look at how this all might shake out. We’ll do so by analyzing five specific bedrock decisions that might draw the Court’s attention—and what overturning each would mean for the real estate industry and American urbanism.