Ilya Shapiro, The Cato Institute
*Cross-posted at Cato-at-Liberty Blog
While the Supreme Court’s 8-0 ruling against the Florida oceanfront (now ocean-view) property owners in Stop the Beach Renourishment v. Florida Dept. of Envt’l Protection was not the result we wanted, the part of the decision that was unanimously unfortunate turned on a narrow and probably mistaken interpretation of state property law. Much more importantly, the remainder of Justice Scalia’s opinion makes clear that judicial takings are just as much a violation of the Fifth Amendment as any other kind. “If a legislature or a court declares that what was once an established right of private property no longer exists,” Scalia writes for a four-justice plurality, “it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.” And the test for whether the government—any part of it—has committed a taking turns on “whether the property right allegedly taken was established.”
Moreover, that the Court ultimately found no taking here should provide no succor to courts and other state actors who wish to abuse property rights in the future. The case could have easily swung the other way in a non-oceanfront circumstance or under a different state’s laws. Indeed, two justices (Kennedy and Sotomayor) said that federal courts can still police judicial takings—under a different name—by using the Fourteenth Amendment’s Due Process Clause, while the remaining two (Breyer and Ginsburg) decided to leave the question for another day. Nobody rejected outright the idea that courts can be held accountable for subverting property rights!
In short, state courts are now on notice that they violate long-held property rights at their peril.