Of Woodchucks and Prune Yards: A View of Judicial Takings from the Trenches

Abstract

Eighty-four years after the Supreme Court acknowledged that an exercise of governmental authority other than the eminent domain power could be a taking, it appears the search for what might fit the bill has devolved from “the “lawyer’s equivalent of the physicist’s hunt for the quark” to the riddle of a nursery rhyme. Having now acknowledged Justice Scalia’s reference to one of the most unlikely phrases ever turned in a Supreme Court opinion, we can move on to the more intriguing questions presented by Stop the Beach Renourishment v. Florida Department of Environmental Protection, the case in which the Court came tantalizingly close to answering the most metaphysical of legal issues: can a state supreme court decision “take” property when it changes state property law?The case held out the promise of providing long sought-after guidance about whether a state’s exercise of judicial power is constrained by the Takings Clause, but ultimately fell one vote short. Six justices agreed that in certain circumstances, a state supreme court’s recharacterization of property from private to public would violate the Constitution; the four-justice Scalia-led plurality concluded it would be a Takings Clause problem, while Justice Kennedy, joined by Justice Sotomayor, saw it as involving the legitimacy of the state court’s action – in other words, substantive due process. Justice Breyer, joined by Justice Ginsburg agreed there was no judicial taking in the case, but demurred on expressing any opinion of when there could be. In this essay we will attempt to provide a view of how we see them, focusing first on the Scalia plurality opinion and the PruneYard case, the only other case where the Court has expressly weighed in on the judicial takings question. We conclude with a suggestion of how PruneYard and the plurality opinion in Stop the Beach Renourishment may provide a roadmap for asserting and winning a judicial takings claim.