A little more on Stop the Beach Renourishment

Elisabeth Oppenheimer is a recent graduate of Stanford Law School.

As Anna Christensen noted in her earlier post, the Court’s opinion in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection (08-1151) ended up turning on a narrow question of Florida property law.  But the Court took the case to explore the idea of judicial takings, and six Justices expressed their views on that subject.  A four-Justice plurality – the Chief Justice and Justices Scalia, Thomas, and Alito — emphatically endorsed the idea that the Takings Clause applies to all three branches of government.  As for the standard of review, the plurality concluded that the question was not whether the state court’s decision was “unpredictable,” as the petitioner had suggested, but whether a court had “declare[d] that what was once an established right of property” no longer existed.

However, there was no obvious fifth vote for either the notion of a judicial taking or the standard of review suggested by the plurality.  Justices Breyer and Ginsburg refused to address the question of judicial takings at all.  Justice Kennedy, joined by Justice Sotomayor, suggested that there should be some constraint on a court’s ability to reallocate property rights.  But they thought that constraint should come from the Due Process Clause, rather than the Takings Clause.  Justice Kennedy questioned how a judicial taking would work — in particular, whether a court could constitutionally take property if just compensation were paid (as a legislature can), and, if so, who would pay that compensation.  Given that complication, he proposed a simpler way to restrain over-active state courts:  “The Court would be on strong footing in ruling that a judicial decision that eliminates or substantially changes established property rights, which are a legitimate expectation of the owner, is ‘arbitrary or irrational’ under the Due Process Clause.”

The decision may be a partial victory for property-rights advocates; there are four strong votes for a judicial takings theory, and no votes for providing state courts with unfettered discretion.  But both the plurality and the concurrences leave significant questions about the broader concept of judicial takings unanswered or under-analyzed, and there is no consensus about how to go forward.