If further proof were needed that appointments to the Supreme Court matter, it was provided today by the Court’s decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. The so-called conservative wing of the Court came one vote short of issuing a decision that would have revolutionized the law of property rights in the United States. The case involved the facially implausible claim by several coastal property owners along Florida’s panhandle that they suffered a “taking” under the Fifth Amendment to the U.S. Constitution because the state and local governments acted to protect them and their neighbors from erosion (my amicus brief in the case is here). The alleged taking resulted from an extensive effort to build up the eroded shoreline with sand pumped from the ocean bottom offshore. Because the new beach was constructed atop publicly owned submerged lands, and paid for with public dollars, the public naturally enough claimed ownership of this new land. Despite the fact that they were at serious risk of losing their homes to the ocean, plaintiffs claimed that the project impaired their property rights because it denied them direct contact with the ocean and deprived them of their common law right to expand their landownership through future accretions to their coastal property deposited by wind and waves. Most of the affected property owners thought they were getting more than a fair deal from the project, but a half dozen owners sued seeking financial compensation on top of the erosion protection they were receiving at public expense. The case began as a claim that the government’s implementation of the renourishment program pursuant to the Florida Beach and Shorefront Preservation Act resulted in a taking. But when the Florida Supreme Court rejected the taking claim on the ground that the public has the right to build on submerged lands and therefore a coastal owner’s interests do not include the right to continuous contact with the shore or to accretion, the case morphed into a claim that the Florida Supreme Court itself had effected a “judicial taking” as a result of its interpretation of the Florida common law of coastal property ownership. The Court today unanimously rejected (with Stevens not voting) the taking claim because no justice believed that, whatever legal test might apply, the plaintiffs had suffered an impairment of their property rights. In short, the Supreme Court said that the Florida Supreme Court got Florida law right and so there was no possible basis for the argument that the state had adopted a novel reading of state law that would support a taking claim. But where the Court sharply divided was on the question of whether there was any substance to the theory that a judicial ruling can ever amount to a “taking” under the Fifth Amendment. Despite the fact that the Supreme Court had never recognized such a claim, Justice Scalia, joined by three other members of the Court (Chief Justice Roberts and Justices Alito and Thomas) had no difficulty concluding that a judicial taking could occur. Indeed, the four said that a taking should be found whenever a court issues a decision that alters an established property interest. Justice Kennedy (joined by Justice Sotomayor) filed a concurring opinion essentially rejecting the judicial takings theory. He reasoned that there was no historical basis for the theory, that the theory would improperly place the courts in the position of making the political choice whether to exercise eminent domain power, and the Due Process Clause provided the needed protection against arbitrary and irrational rulings on property law questions.
Justice Breyer (joined by Justice Ginsburg) also declined to join Justice Scalia, arguing that the claim so obviously failed on the merits under any test that there was no need to addresses the merits of the judicial takings theory. While Justice Stevens recused himself (presumably because of his ownership of Florida coastal property) it seems likely that he would have joined the concurring justices in declining to embrace the judicial takings theory. If Justice Scalia’s viewpoint had prevailed, the Court’s takings doctrine would have expanded to encompass a whole new universe of government actions, the many thousands of property rulings state courts issue each year. Federal court review under the Takings Clause of state court rulings would also have undermined the value of state autonomy in our federal system that judicial conservatives ostensibly support in other contexts as well as the tradition of comity that has governed federal-state court relations in this country. More importantly, Justice Scalia’s “established right” theory would have basically elevated the Takings Clause into an absolute constitutional barrier to traditional common law law-making. The state courts have long recognized that the scope and nature of property rights must change in accord with changed circumstances and new values. Indeed, Justice Scalia, writing for the majority in Lucas v. South Carolina Coastal Council, acknowledged “changed circumstances or new knowledge may” alter the content of background principles of state law, rules which are generally rooted in the common law. Now, speaking for a quixotic plurality, Justice Scalia has adopted a much narrower view of state authority to redefine property interests, essentially saying that the state courts may only make such a change in their common law with federal court approval. The closely fought and bitterly contested battle in this case has, happily, resulted in a victory for the state of Florida and its local communities and a rejection, for the foreseeable future, of the judicial takings theory. But it is remarkable how close the Court came to embarking on a new activist tear on behalf of private property holders.