Cons Want it Both Ways in STBR

No Bilski this morning, but Thomas did write the other remaining November case, so Stevens remains the prime candidate for majority author.

The Court did release its opinion in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection.  Early in the life of F1@1F, I flagged this case because it pits federalism against property rights, two traditionally conservative causes.  Turns out the Court’s conservative bloc – Roberts, Scalia, Thomas, and Alito – found the two concerns, in this case at least, reconcilable.

Scalia announced the opinion of the Court that the Florida Supreme Court did not commit a taking when it approved of an erosion-control plan that the plaintiffs had argued diminished their beachfront property.  On this point, the Court was unanimous.

But Scalia continued, in parts joined only by the conservative bloc, to recognize the concept of a “judicial taking” that the plaintiff-petitioners put to the Court.  In 1994, Scalia had argued for the recognition of the concept that a court’s decision could amount to the government’s taking of property without just compensation in violation of the Fifth and Fourteenth Amendments.  It was no surprise, then, that he’d attempt to codify “judicial takings” in STBR.

Without five members signing onto this part of the decision, the true clash of conservative principles will have to wait another day.  Justice Kennedy, for his part, sided with the liberals who today–in fact, all term–were playing the role of the judicially restrained.  In two separate concurrences – Kennedy w/ Sotomayor and Breyer w/ Ginsburg – four justices agreed that this case presented no necessity to address, or even recognize, “judicial takings.”  Stevens, the owner of beachfront Florida property, recused himself from the case.

But at least now we know that property rights mean more than federalism for the members of the Court who traditionally champion both with full force.  What side the liberals will fall upon in the next Bush v. Gore of property rights is less certain, but if we were to combine their positions in Bush v. Gore itself (deferring to a state supreme court on matters of state law) and Kelo v. New London (robust interpretation of the takings clause), then I’d say that federalism will win their votes.  If Sotomayor and Kagan (if confirmed) will vote like their predecessors in this hypothetical future case, then Kennedy, as ever, will prove the deciding vote.

UPDATE: Scalia calls Breyer a woodchuck, Kennedy, Orwellian:

JUSTICE BREYER’s concurrence says that we need nei- ther (1) to decide whether the judiciary can ever effect a taking, nor (2) to establish the standard for determining whether it has done so. See post, at 1–2 (opinion concur- ring in part and concurring in judgment). The second part of this is surely incompatible with JUSTICE BREYER’s conclusion that the “Florida Supreme Court’s decision in this case did not amount to a ‘judicial taking.’” Post, at 3.  One cannot know whether a takings claim is invalid with- out knowing what standard it has failed to meet.6 Which means that JUSTICE BREYER must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such a thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?), or (b) answer in the negative what he considers to be the “unnecessary” constitutional question whether there is such a thing as a judicial taking.

…

In any case, our opinion does not trust judges with the relatively small power JUSTICE KENNEDY now objects to. It is we who propose setting aside judicial decisions that take private property; it is he who insists that judges cannot be so limited. Un- der his regime, the citizen whose property has been judi- cially redefined to belong to the State would presumably be given the Orwellian explanation: “The court did not take your property. Because it is neither politically ac- countable nor competent to make such a decision, it can- not take property.”

Scalia then goes on to seize back the mantle of judicial restraint from Kennedy the Usurper, Author of Lawrence:

Finally, we cannot avoid comment upon JUSTICE KENNEDY’s donning of the mantle of judicial restraint— his assertion that it is we, and not he, who would empower the courts and encourage their expropriation of private property. He warns that if judges know that their action is covered by the Takings Clause, they will issue “sweep- ing new rule[s] to adjust the rights of property owners,” comfortable in the knowledge that their innovations will be preserved upon payment by the State. Post, at 6. That is quite impossible. As we have said, if we were to hold that the Florida Supreme Court had effected an uncom- pensated taking in this case, we would not validate the taking by ordering Florida to pay compensation. We would simply reverse the Florida Supreme Court’s judg- ment that the Beach and Shore Preservation Act can be applied to the Members’ property. The power to effect a compensated taking would then reside, where it has al- ways resided, not in the Florida Supreme Court but in the Florida Legislature—which could either provide compen- sation or acquiesce in the invalidity of the offending fea- tures of the Act. Cf. Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 817–818 (1989). The only realistic incentive that subjection to the Takings Clause might provide to any court would be the incentive to get reversed, which in our experience few judges value.

JUSTICE KENNEDY, however, while dismissive of the Takings Clause, places no other constraints on judicial action. He puts forward some extremely vague applica- tions of Substantive Due Process, and does not even say that they (whatever they are) will for sure apply. (“It is thus natural to read the Due Process Clause as limiting the power of courts to eliminate or change established property rights,” post, at 3; “courts . . . may not have the power to eliminate established property rights by judicial decision,” post, at 4; “the Due Process Clause would likely prevent a State from doing by judicial decree what the Takings Clause forbids it to do by legislative fiat,” post, at 4–5 (internal quotation marks omitted); we must defer applying the Takings Clause until “[i]f and when future cases show that the usual principles, including constitu- tional principles that constrain the judiciary like due process, are somehow inadequate to protect property owners,” post, at 10.)

Moreover, and more importantly, JUSTICE KENNEDY places no constraints whatever upon this Court. Not only does his concurrence only think about applying Substantive Due Process; but because Substantive Due Process is such a wonderfully malleable concept, see, e.g., Lawrence v. Texas, 539 U. S. 558, 562 (2003) (referring to “liberty of the person both in its spatial and in its more transcendent dimensions”), even a firm commitment to apply it would be a firm commitment to nothing in particular. JUSTICE KENNEDY’s desire to substitute Substantive Due Process for the Takings Clause suggests, and the rest of what he writes confirms, that what holds him back from giving the Takings Clause its natural meaning is not the intrusive- ness of applying it to judicial action, but the definiteness of doing so; not a concern to preserve the powers of the States’ political branches, but a concern to preserve this Court’s discretion to say that property may be taken, or may not be taken, as in the Court’s view the circumstances suggest. We must not say that we are bound by the Con- stitution never to sanction judicial elimination of clearly established property rights. Where the power of this Court is concerned, one must never say never. See, e.g., Vieth v. Jubelirer, 541 U. S. 267, 302–305 (2004) (plurality opinion); Sosa v. Alvarez-Machain, 542 U. S. 692, 750–751 (2004) (SCALIA, J., concurring in part and concurring in judgment). The great attraction of Substantive Due Proc- ess as a substitute for more specific constitutional guaran- tees is that it never means never—because it never means anything precise.

How Scalia’s takedown of Substantive Due Process here will play with the decision in McDonald v. City of Chicago, in which he accepted SDP’s legitimacy over the PI Clause at oral argument, is to be determined.  But he does give hints in STBR on why he thwarted Alan Gura’s argument in McDonald: Gura was gunning, through guns, for a libertarian legal resurrection that Scalia wants to keep buried:

[W]e have held for many years (logically or not) that the “liberties” protected by Substantive Due Process do not include economic liber- ties. See, e.g., Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U. S. 525, 536 (1949). JUSTICE KENNEDY’s language (“If a judicial decision . . . eliminates an established property right, the judgment could be set aside as a deprivation of property without due process of law,” post, at 3) propels us back to what is referred to (usually deprecatingly) as “the Lochner era.” See Lochner v. New York, 198 U. S 45, 56–58 (1905). That is a step of much greater novelty, and much more unpredictable effect, than merely applying the Takings Clause to judicial action.