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Analysis: An elusive constitutional issue


The last time the Supreme Court went out of its way to correct the errant ways of the Florida Supreme Court was nine years ago — in Bush v. Gore.  That still-controversial precedent did not get mentioned during oral argument on Wednesday, but it may well have been in the background as the Justices again closely parsed the work of that state’s highest tribunal.  This time, though, most of them came away seemingly reluctant to conclude that the Florida court does not know what it is doing.  And, though some were tempted to do just that, it did not appear that five were, as the Court heard Stop the Beach Renourishment v. Florida.

The constitutional issue that looms in this case is one the Court has often heard about but never before agreed to consider: is there such a thing as a “judicial taking” — a court decision that, in fact, seizes property for public use without paying for it? Justice Antonin Scalia, whom some property law experts see as eager to find such a “taking,” emerged Wednesday as sympathetic to that idea, but still a bit skeptical.  Sharing some of his sentiments, in varying degrees of intensity, were Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr.

Even assuming they feel that way, though, could that perception draw five votes?  (Even though only an eight-Justice Court will be deciding this case, because Justice John Paul Stevens — a Florida property owner — took himself out of the case, it still would take five votes to overturn the state Supreme Court ruling at issue.)

To reach that result, the Justices seemed to understand, they would have to look closely into the history of property rights under Florida state law, and then conclude that the state Supreme Court seriously misinterpreted those rights in ruling against beachfront property owners in Walton County who claim that some of their rights have been taken away without compensation.  As Justice Anthony M. Kennedy (sure to hold a crucial vote) put it, “we have to become real experts in Florida law” before they could conclude that the state court lacked any fair basis in state law for its ruling.

And, in another revealing comment, Kennedy seemed to be saying that, after reading the state court’s opinion, he could find in it a sufficient grounding in state law principles.  If Kennedy is actually persuaded of that, it would seem, he would never get to the issue of whether a court ruling can constitute an unconstitutional “taking.” He also appeared uncertain over how to craft a meaningful constitutional standard for finding a “judicial taking.” He asked, rhetorically, “would we just find all sorts of adjectives” to characterize a state court’s reading of its own law before the Justices would allow a federal court to second-guess it?

At the same time, Kennedy did display some concern (prompted by some slippery-slope questioning by Justice Alito) that if state governments were left largely free to re-arrange how beachfront property could be used or developed, existing owners’ rights would be seriously impaired.  But that appeared to be mainly a worry over what state agencies, not state courts, would do with a state’s beaches.

For all the sympathy that the Walton County beachfront owners drew from some members of the Court, they got none to speak of from Justices Stephen G. Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor. Bluntly, both Breyer and Sotomayor told the owners’ lawyer that his clients had actually lost nothing at all when the state filled in beach that had been eroded by hurricanes.  Ginsburg appeared to be deeply skeptical of even the suggestion that the state court had taken the owners’ rights, implying that they were on the right track when they challenged actions of the state legislature, before switching targets to challenge the state court.

Even Justice Scalia, whose initial comments early in the argument seemed to place him definitely on the property owners’ side, developed a bit of his own skepticism as the argument moved along.  He suggested that those owners might well have benefitted significantly from beach-restoration projects, so perhaps those were not such a “bad idea” after all.

There was one indication that, for all of the difficulty the Court might see in wrestling with the “judicial taking” concept, the Justices were serious about considering that question this time.  That indication came in the aggressive questioning from the bench of the federal government’s lawyer, Deputy Solicitor General Edwin S. Kneedler.  In the case to represent the government as amicus supporting the state of Florida’s “sovereign interests” in protecting its own beaches, Kneedler’s entire argument was that the Court simply need not even consider the “taking” question and, if it did, to find absolutely no basis for it in this particular dispute.

The sharpest retort came from the Chief Justice: “Mr. Kneedler, that’s a clever ploy.  We’re talking about judicial takings and you say, don’t look at what the court did, look at what the legislature did.  That changes the whole ball game.”

Moreover, Kneedler had no real answer when pressed to suggest why the state Supreme Court had failed to cite the one precedent in state property law that would most support the conclusion it drew.  That, said the government lawyer, was indeed surprising.

If it should turn out that the Court casts a 4-4 tie vote when it casts its first tally on the case, that result could be announced quickly — perhaps as early as next week.  That would uphold the state court ruling, without an opinion and without setting a precedent.  The notion of “judicial taking” would then have to await another day and a different case.