Lead Opinion
OPINION OF THE COURT
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announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, IV, and V, and an opinion with
We consider a claim that the decision of a State’s court of last resort took property without just compensation in violation of the Takings Clause of the Fifth Amendment, as applied against the States through the Fourteenth, see Dolan v. City of Tigard,
I
A
Generally speaking, state law defines property interests, Phillips v. Washington Legal Foundation,
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land. See Miller v. Bay-To-Gulf, Inc.,
Littoral owners have, in addition to the rights of the public, certain “special rights” with regard to the water and the foreshore, Broward,
At the center of this case is the right to accretions and relictions. Accretions are additions of alluvion (sand, sediment, or other deposits) to waterfront land; relictions are lands once covered by water that become dry when the water recedes. F. Maloney, S. Plager, & F. Baldwin, Water Law and Administration: The Florida Experience § 126, pp. 385-386 (1968)
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addition to land by the action of the water or a sudden change in the bed of a lake or the course of a stream,” the change is called an avulsion. Sand Key, supra, at 936; see also 1 Farnham § 69, at 320.
In Florida, as at common law, the littoral owner automatically takes title to dry land added to his property by accretion; but formerly submerged land that has become dry land by avulsion continues to belong to the owner of the seabed (usually the State). See, e.g., Sand Key, supra, at 937; Maloney § 126.6, at 392; 2 W. Blackstone, Commentaries on the Laws оf England 261-262 (1766) (hereinafter Blackstone). Thus, regardless of whether an avulsive event exposes land previously submerged or submerges land previously exposed, the boundary between littoral property and sovereign land does not change; it remains (ordinarily) what was the mean high-water line before the event. See Bryant v. Peppe,
B
In 1961, Florida’s Legislature passed the Beach and Shore Preservation Act, 1961 Fla. Laws ch. 61-246, as amended, Fla. Stat. §§ 161.011-161.45 (2007). The Act establishes procedures for “beach restoration and nourishment projects,” § 161.088, designed to deposit sand on eroded beaches (restoration) and to maintain the deposited sand (nourishment). § 161.021(3), (4). A local government may apply to the Department of Environmental Protection (Department) for the funds and the necessary permits to restore a beach, see §§161.101(1), 161.041(1). When the project involves placing fill on the State’s submerged lands, authorization is required from the Board of Trustees of the Internal Improvement
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Trust Fund (Board), see §253.77(1), which holds title to those lands, §253.12(1).
Once a beach restoration “is determined to be undertaken,” the Board sets what is called “an erosion control line.” § 161.161(3)—(5). It must be set by reference to the existing mean high-water line, though in theory it can be located seaward or landward of that.
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the use of submerged land would “unreasonably infringe on riparian rights,” the project cannot proceed unless the local governments show that they own or have a property interest in the upland property adjacent to the project site. Fla. Admin. Code Rule 18-21.004(3)(b) (2009).
C
In 2003, the city of Destin and Walton County applied for the necessary permits to restore 6.9 miles of beach within their jurisdictions that had been eroded by several hurricanes. The project envisioned depositing along that shore sand dredged from further out. See Walton Cty. v. Stop the Beach Renourishment, Inc.,
Petitioner here, Stop the Beach Re-nourishment, Inc., is a nonprofit corporation formed by people who own beachfront property bordering the project area (we shall refer to them as Members). It brought an administrative challenge to the proposed project, see id., at 10-26, which was unsuccessful; the Department approved the permits. Petitioner then challenged that action in state court under the Florida Administrative Procedure Act, Fla. Stat. § 120.68 (2007). The District Cоurt of Appeal for the First District concluded that, contrary to the Act’s preservation of “ ‘all common-law riparian rights,’ ” the order had eliminated two of the Members’ littoral rights: (1) the right to receive accretions to their property; and (2) the right to have the contact of their property with the water remain intact. Save Our Beaches, Inc. v. Florida Dept. of Environmental Protection,
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under Fla. Admin. Code Rule 18-21.004(3Mb) that the local governments owned or had a property interest in the upland property. It set aside the Department’s final order approving the permits and remanded for
“On its face, does the Beach and Shore Preservation Act unconstitutionally deprive upland owners of littoral rights without just compensation?”3 998 So. 2d, at 1105 (footnotes omitted).
The Florida Supreme Court answered the certified question in the negative, and quashed the First District’s remand. Id., at 1121. It faulted the Court of Appeal for not considering the doctrine of avulsion, which it concluded permitted the State to reclaim the restored beach on behalf of the public. Id., at 1116-1118. It described the right to accretions as a future contingent interest, not a vested property right, and held that there is no littoral right to contact with the water independent of the littoral right of access, which the Act doеs not infringe. Id., at 1112, 1119-1120. Petitioner sought rehearing on the ground that the Florida Supreme Court’s decision itself effected a taking of the Members’ littoral rights contrary to the Fifth and Fourteenth Amendments to the Federal Constitution.
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II
A
Before coming to the parties’ arguments in the present case, we discuss some general principles of our takings jurisprudence. The Takings Clause—“nor shall private property be taken for public use, without just compensation,” U. S. Const., Amdt. 5—applies as fully to the taking of a landowner’s riparian rights as it does to the taking of an estate in land.
The Takings Clause (unlike, for instance, the Ex Post Facto Clauses, see Art. I, § 9, cl. 3; § 10, cl. 1) is not addressed to the action of a specific branch or branches. It is concerned
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simply with the act, and not with the governmental actor (“nor shall private property be taken” (emphasis added)). There is no textual justification for saying that the existence or the scope of a State’s power to expropriate private property without just compensation varies according to the branch of government effecting the expropriation. Nor does common sense recommend such a principle. It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat. See Stevens v. Cannon Beach,
Our precedents provide no support for the proposition that takings effected by the judicial branch are entitled to special treatment, and in fact suggest the contrary. PruneYard Shopping Center v. Robins,
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by judicial action cannot occur, and arguably suggests that the same analysis applicable to taking by constitutional provision would apply.
Webb’s Fabulous Pharmacies, supra, is even closer in point. There the purchaser of an insolvent corporation had interpleaded the corporation’s creditors, placing the purchase price in an interest-bearing account in the registry of the Circuit Court of Seminole County, to be distributed in satisfaction of claims approved by a re
In sum, the Takings Clause bars the State from taking private property without paying for it, no matter which branch is the instrument of the taking. To be sure, the manner of state action may matter: Condemnation by eminent domain, for example, is always a taking, while a legislative, executive, or judicial restriction of property use may or may not be, depending on its nature and extent. But the particular state actor is irrelevant. If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation. “[A] State, by ipse dixit, may not transform private property into public property without compensation.” Ibid.
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B
Justice Breyer’s concurrence says that we need neither (1) to decide whether the judiciary can ever effect a taking, nor (2) to establish the standard for determining whether it has done so. Seе post, at 742-743,
It is not true that deciding the constitutional question in this case contradicts our settled practice. To the contrary, we have often recognized the existence of a constitutional right, or established the test for violation of such a right (or both), and then gone on to find that the claim at issue fails. See, e.g., New Jersey v. T. L. O., 469
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Hill v. Lockhart,
“Assuming without deciding” would be less appropriate here than it was in many of those earlier cases, which established constitutional rights quite separate from any that had previously been acknowledged. Compared to Strickland’s proclamation of a right to effective assistance of counsel, for example, proclaiming that a taking can occur through judicial action addresses a point of relative detail.
In sum, Justice Breyer cannot decide that petitioner’s claim fails without first deciding what a valid claim would consist of. His agreement with Part IV of our opinion necessarily implies agreement with the test for a judicial taking (elaborated in Part II—A) which Part IV applies: whether the state court has “declarе [d] that what was once an established right of private property no longer exists,” supra, at 715,
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Justice Breyer must either agree with that standard or craft one of his own. And agreeing to or crafting a hypothetical standard for a hypothetical constitutional right is sufficiently unappealing (we have eschewed that course many times in the past) that Justice Breyer might as well acknowledge the right as well. Or he could avoid the need to agree with or craft a hypothetical standard by denying the right. But embracing a standard while being coy about the right is, well, odd; and deciding this case while addressing neither the standard nor the right is quite impossible.
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C
Like Justice Breyer’s concurrence, Justice Kennedy’s concludes that the Florida Supreme Court’s action here does not meet the standard for a judicial taking, while purporting not to determine what is the standard for a judicial taking, or indeed whether such a thing as a judicial taking even exists. That approach is invalid for the reasons we have discussеd.
Justice Kennedy says that we need not take what he considers the bold and risky step of holding that the Takings Clause applies to judicial action, because 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 737,
The first respect in which Justice Kennedy thinks the Due Process Clause can do the job seems to sound in procedural due process. Because, he says, “[c]ourts, unlike the executive or legislature, are not designed to make policy decisions” about expropriation, “[t]he Court would be on strong footing in ruling that a judicial decision that eliminates or substantially changes established property rights” violates the Due Process Clause. Post, at 736, 737,
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for the due process limitation are that the legislative and executive branches “are accountable in their political capacity” for takings, post, at 734,
Of course even taking those reasons at face value, it is strange to proclaim a democracy deficit and lack of special competence for the judicial taking of an individual property right, when this Court has had no trouble deciding matters of much greater moment, contrary to congressional desire or the legislated desires of most of the States, with no special competence except the authority we possess to enforce the Constitution. 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. Under his regime, the citizen whose property has been judicially redefined to belong to the State would presumably be given the Orwellian explanation: “Thе court did not take your property. Because it is neither politically accountable nor competent to make such a decision, it cannot take property.”
Justice Kennedy’s injection of separation-of-powers principles into the Due Process Clause would also have the ironic effect of preventing the assignment of the expropriation function to the branch of government whose procedures are, by far, the most protective of individual rights. So perhaps even this first respect in which Justice Kennedy would have the Due Process Clause do the work of the Takings Clause pertains to Substantive, rather than procedural, due process. His other arguments undoubtedly pertain to that, as evidenced by his assertion that “ [i] t is .. . natural to read the Due Process Clause as limiting the power of courts
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to eliminate or change established property rights,” post, at 736,
The first problem with using substantive due process to do the work of the Takings Clause is that we have held it cannot be done. “Where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behaviоr, ‘that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims.’ ” Albright v. Oliver,
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Clause does, or (2) if it does all that the Takings Clause does, it will encounter the same supposed difficulties that Justice Kennedy finds troublesome.
We do not grasp the relevance of Justice Kennedy’s speculation, post, at 739,
Justice Kennedy has added “two additional practical considerations that the Court would need to address before recognizing judicial takings,” post, at 740,
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 “sweeping 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 738,
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power to effect a compensated taking would then reside, where it has always resided, not in the Florida Supreme Court but in the Florida Legislature—which could either provide compensation or acquiesce in the invalidity of the offending features of the Act. Cf. Davis v. Michigan Dept. of Treasury,
Justice Kennedy, however, while dismissive of the Takings Clause, places no other constraints on judicial action. He puts forward some extremely vague applications 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 736,
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,
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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 intrusiveness 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 Constitution 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,
Ill
Respondents put forward a number of arguments which contradict, to a greater or lesser degree, the principle discussed above, that the existence of a taking does not depend upon the branch of government that effects it. First, in a case claiming a judicial taking they would add to our normal takings inquiry a requirement that the court’s decision have no “fair and substantial basis.” This is taken from our jurisprudence dealing with the question whether a state-court decision rests upon adequate and independent state grounds, placing it beyond our jurisdiction to review. See E. Gressman, K. Geller, S. Shapiro, T. Bishop, & E. Hartnett, Supreme Court Practice, ch. 3.26, p. 222 (9th ed. 2007). To ensure that there is no “evasion” of our authority to review federal questions, we insist that the nonfederal ground of decision have “fair support.” Broad River Power Co. v. South Carolina ex rel. Daniel,
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22-23,
Next, respondents argue that federal courts lack the knowledge of state law required to decide whether a judicial decision that purports merely to clarify property rights has instead taken them. But federal courts must often decide what state property rights exist in nontakings contexts, see, e.g., Board of Regents of State Colleges v. Roth,
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of the State’s law of property and nuisance already place upon land ownership.” Lucas,
Respondents also warn us against depriving common-law judging of needed flexibility. That argument has little appeal when directed against the enforcement of a constitutional guarantee adopted in an era when, as we said supra, at 722,
Finally, the city and county argue that applying the Takings Clause to judicial decisions would force lower federal courts to review final state-court judgments, in violation of the so-called Rooker-Feldman doctrine. See Rooker v. Fidelity Trust Co.,
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a legislative or executive taking approved by the state supreme-court opinion; the matter would be res judicata. And where the claimant was not a party to the original suit, he would be able to challenge in federal court the taking effected by the state supreme-court opinion to the samе extent that he would be able to challenge in federal court a legislative or executive taking previously approved by a state supreme-court opinion.
For its part, petitioner proposes an unpredictability test. Quoting Justice Stewart’s concurrence in Hughes v. Washington,
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IV
We come at last to petitioner’s takings attack on the decision below. At the outset, respondents raise two preliminary points which need not detain us long. The city and the county argue that petitioner cannot state a cause of action for a taking because, though the Members own private property, petitioner itself does not; and that the claim is unripe because petitioner has not sought just compensation. Neither objection appeared in the briefs in opposition to the petition for writ of certiorari, and since neither is jurisdictional,
Petitioner argues that the Florida Supreme Court took two of the property rights of the Members by declaring that those rights did not exist: the right to accretions, and the right to have littoral property touch the water (which petitioner distinguishes from the mere right of access to the water).
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tidal lands cоuld have the effect of depriving a littoral owner of contact with the water and denying him future accretions, the Florida Supreme Court’s judgment in the present case abolished those two easements to which littoral-property owners had been entitled. This puts the burden on the wrong party. There is no taking unless petitioner can show that, before the Florida Supreme Court’s decision, littoral-property owners had rights to future accretions and contact with the water superior to the State’s right to fill in its submerged land. Though some may think the question close, in our view the showing cannot be made.
Two core principles of Florida property law intersect in this case. First, the State as owner of the submerged land adjacent to littoral property has the right to fill that land, so long as it does not interfere with the rights of the public and the rights of littoral landowners. See Hayes v. Bowman,
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J., concurring)). This is not surprising, as there can be no accretions to land that no longer abuts the water.
Thus, Florida law as it stood before the decision below allowed the State to fill in its own seabed, and the resulting sudden exposure of previously submerged land was treated like an avulsion for purposes of ownership. The right to accretions was therefore subordinate to the State’s right to fill. Thiesen v. Gulf, Fla. & Ala. R. Co. suggests the same result. That case involved a claim by a riparian landowner that a railroad’s state-authorized filling of submerged land and construction of tracks upon it interfered with the riparian landowners’ rights to access and to wharf out to a shipping channel. The Florida Supreme Court determined that the claimed right to wharf out did not exist in Florida, and that therefore only the right of access was compensable.
The Florida Supreme Court decision before us is consistent with these background principles of state property law. Cf. Lucas,
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and the other relevant principles of Florida law we have discussed.
What we have said shows that the rule of Sand Key, which petitioner repeatedly invokes, is inapposite. There the Florida Supreme Court held that an artificial accretion does not change the right of a littoral-property owner to claim the accreted land as his own (as long as the owner did not cause the accretion himself).
The result under Florida law may seem counterintuitive. After all, the Members’ property has been deprived of its character (and value) as oceanfront property by the State’s artificial creation of an avulsion. Perhaps state-created avulsions ought to be treated differently from other avul-sions insofar as the property right to accretion is cоncerned. But nothing in prior Florida law makes such a distinction, and Martin suggests, if it does not indeed hold, the contrary. Even if there might be different interpretations of Martin and other
Petitioner also contends that the State took the Members’ littoral right to have their property continually maintain contact with the water. To be clear, petitioner does not allege that the State relocated the property line, as would have happened if the erosion-control line were landward of the old mean high-water line (instead of identical to it). Petitioner argues instead that the Members have a separate right for the boundary of their property to be always the mean high-water
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line. Petitioner points to dicta in Sand Key that refers to “the right to have the property’s contact with the water remain intact,”
V
Because the Florida Supreme Court’s decision did not contravene the established property rights of petitioner’s Members, Florida has not violated the Fifth and Fourteenth Amendments. The judgment of the Florida Supreme Court is therefore affirmed.
It is so ordered.
Justice Stevens took no part in the decision of this case.
Notes
. Many cases and statutes use “riparian” to mean abutting any body of water. The Florida Supreme Court, however, has adopted a more precise usage whereby “riparian” means abutting a river or stream and “littoral” means abutting an ocean, sea, or lake. Walton Cty. v. Stop the Beach Renourishinent, Inc.,
. We assume, as the parties agree we should, that in this case the erosion-control line is the pre-existing mean high-water line. Tr. of Oral Arg. 11-12. Respondents concede that, if the erosion-control line were established landward of that, the State would have taken property. Brief for Respondent Department et al. 15; Brief for Respondent Walton County et al. 6.
. The Florida Supreme Court seemingly took the question to refer to constitutionality under the Florida Constitution, which contains a clause similar to the Takings Clause of the Federal Constitution. Compare Fla. Const., Art. X, § 6, cl. (a), with U. S. Const., Amdt. 5.
. We ordinarily do nоt consider an issue first presented to a state court in a petition for rehearing if the state court did not address it. See Adams v. Robertson,
. We thus need not resolve whether the right of accretion is an easement, as petitioner claims, or, as Florida claims, a contingent future interest.
. Thus, the landmark case of Penn Central Transp. Co. v. New York City,
. See Smith v. Spisak,
. See Spisak, supra, at 155-156,
. Justice Breyer complains that we do not set forth “procedural limitations or canons of deference’’ to restrict federal-court review of state-court property decisions. See post, at 744,
. Petitioner meets the two requirements necessary for an association to assert the Article III standing of its Members. See Food and Commercial Workers v. Brown Group, Inc.,
. Petitioner raises two other claims that we do not directly address. First, petitioner tries to revive its challenge to the beach-restoration project, contending that it (rather than the Florida Supreme Court’s opinion) cоnstitutes a taking. Petitioner’s arguments on this score are simply versions of two arguments it makes against the Florida Supreme Court’s opinion: that the Department has replaced the Members’ littoral-property rights with versions that are inferior because statutory; and that the Members previously had the right to have their property contact the water. We reject both, infra, at 732-733,
. Petitioner also argues that the Members’ other littoral rights have been infringed because the Act replaces their common-law rights with inferior statutory versions. Petitioner has not established that the statutory versions are inferior; and whether the source of a property right is the common law or a statute makes no difference, so long as the property owner continues to have what he previously had.
Concurrence Opinion
SEPARATE OPINIONS
with whom Justice Sotomayor joins, concurring in part and concurring in the judgment.
The Court’s analysis of the principles that control ownership of the land in question, and of the rights of petitioner’s members as adjacent owners, is correct in my view, leading to my joining Parts I, IV, and V of the Court’s opinion. As Justice Breyer observes, however, this case does not require
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the Court to determine whether, or when, a judicial decision determining the rights of property owners can violate the Takings Clause of the Fifth Amendment of the United States Constitution. This separate opinion notes certain difficulties that should be considered before accepting the theory that a judicial decision that eliminates an “established property right,” ante, at 726,
The right of the property owner is subject, however, to the rule that the government does have power to take property for a public use, provided that it pays just compensation. See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles,
In the exercise of their duty to protect the fisc, both the legislative and executive branches monitor, or should monitor, the exercise of this substantial power. Those branches are accountable in their political capacity for the proper discharge of this obligation.
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To enable officials to better exercise this great power in a responsible way, some States allow their officials to take a second look after property has been condemned and a jury returns a verdict setting the amount of just compensation. See, e.g., Cal. Civ. Proc. Code Ann. § 1268.510 (West 2007). If the condemning authority, usually acting through the executive, deems the compensation too high to pay for the project, it can decide not to take the property at all. The landowner is reimbursed for certain costs and expenses of litigation and the property remains in his or her hands. See, e.g., § 1268.610(a).
This is just one aspect of the exercise of the power to select what property to condemn and the responsibility to ensure that the taking makes financial sense from the State’s point of view. And, as a matter of custom and practice, these are matters for the pоlitical branches—the legislature and the executive—not the courts. See First English, supra, at 321,
If a judicial decision, as opposed to an act of the executive or the legislature, eliminates an established property right, the judgment could be set aside as a deprivation of property without due process of law. The Due Process Clause, in both its substantive and procedural aspects, is a central limitation upon the exercise of judicial power. And this Court has long recognized that property regulations can be invalidated under the Due Process Clause. See, e.g., Lingle v. Chevron U. S. A. Inc.,
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must be limits on government’s ability to diminish property values by regulation “or the contract and due process clauses are gone”). It is thus natural to read the Due Process Clause as limiting the power of courts to eliminate or change established property rights.
The Takings Clause also protects property rights, and it “operates as a conditional limitation, permitting the government to do what it wants so long as it pays the charge.” Eastern Enterprises v. Apfel,
When courts act without direction from the executive or legislature, they may not have the power to eliminate established property rights by judicial decision. “Given that the constitutionality” of a judicial decision altering property rights “appears to turn on the legitimacy” of whether the court’s judgment eliminates or changes established property rights “rather than on the availability of compensation, . . . the more appropriate constitutional analysis arises under general due process principles rather than under the Takings Clause.” Ibid. Courts, unlike the executive or legislature, are not designed to make policy decisions about “the need for, and likely effectiveness of, regulatory actions.” Lingle, supra, at 545,
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and Property: Due Process, Regulatory Takings, and Judicial Takings, 2001 Utah L. Rev. 379, 435.
The Court would be on strong footing in ruling that a judicial decision that eliminates or substantially changes established property rights, which are a legitimate expectation of the owner, is “arbitrary or irrational” under the Due Process Clause. Lingle,
To announce that courts too can effect a taking when they decide cases involving property rights would raise certain difficult questions. Since this case does not require those questions to be addressed, in my respectful view, the Court should not reach beyond the necessities of the case to announce a sweeping rule that court decisions can be takings, as that phrase is used in the Takings Clause. The evident reason for recognizing a judicial takings doctrine would be
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to constrain the power of the judicial branch. Of course, the judiciary must respeсt private ownership. But were this Court to say that judicial decisions become takings when they overreach, this might give more power to courts, not less.
Consider the instance of litigation between two property owners to determine which one bears the liability and costs when a tree that stands on one property extends its roots in a way that damages adjacent property. See, e.g., Fancher v. Fagella,
But if the state court were deemed to be exercising the power to take property, that constraint would be removed. Because the State would be bound to pay owners for takings caused by a judicial decision, it is conceivable that some judges might decide that enacting a sweeping new rule to adjust the rights of property owners in the context of changing social needs is a good idea. Knowing that the resulting ruling would be a taking, the courts could go ahead with their project, free from constraints that would otherwise confine their power. The resulting judgment as be
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final judgments violates Due Process Clause). And if the litigation were a class action to decide, for instance, whether there are public rights of access that diminish the rights of private ownership, a State might find itself obligated to pay a substantial judgment for the judicial ruling. Even if the legislature were to subsequently rescind the judicial decision by statute, the State would still have to pay just compensation for the temporary taking that occurred from the time of the judicial decision to the time of the statutory fix. See First English,
The idea, then, that a judicial takings doctrine would constrain judges might just well have the opposite effect. It would give judges new power and new assurance that changes in property rights that are beneficial, or thought to be so, are fair and proper because just compensation will be paid. The judiciary historically has not had the right or responsibility to say what property should or should not be taken.
Indeed, it is unclear whether the Takings Clause was understood, as a historical matter, to apply to judicial decisions. The Framers most likely viewed this Clause as applying only to physical appropriation pursuant to the power of eminent domain. Sеe Lucas v. South Carolina Coastal Council,
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There are two additional practical considerations that the Court would need to address before recognizing judicial takings. First, it may be unclear in certain situations how a party should properly raise a judicial takings claim. “[I]t is important to separate out two judicial actions—the decision to change current property rules in a way that would constitute a taking, and the decision to require compensation.” Thompson, Judicial Takings, 76 Va. L. Rev. 1449, 1515 (1990). In some contexts, these issues could arise separately. For instance, assume that a state-court opinion explicitly holds that it is changing state property law, or that it asserts that it is not changing the law but there is no “fair or substantial basis” for this statement. Broad River,
Second, it is unclear what remedy a reviewing court could enter after finding a judicial taking. It appears under our precedents that a party who suffers a taking is only entitled to damages, not equitable relief: The Court has said that “[e]quitable relief is not available to enjoin an alleged taking of private property for a public use . . . when a suit for compensation can be brought against the sovereign subsequent to the taking,” Ruckelshaus v. Monsanto Co.,
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Clause requires the availability of a suit for compensation against the States, First English, supra, at 321-322,
It is thus questionable whether reviewing courts could invalidate judicial decisions deemed to be judicial takings; they may only be able to order just compensation. In the posture discussed above where Case A changes the law and Case B addresses whether that change is a taking, it is not clear how the Court, in Case B, could invalidate the holding of Case A. If a single case were to properly address both a state court’s change in the law and whether the change was a taking, the Court might be able to give the state court a choice on how to proceed if there were a judicial taking. The Court might be able to remand and let the state court determine whether it wants to insist on changing its property law and paying just compensation or to rescind its holding that changed the law. Cf. First English,
These difficult issues are some of the reasons why the Court should not reach beyond the necessities of the case to recognize a judiciаl takings doctrine. It is not wise, from an institutional standpoint, to reach out and decide questions that have not been discussed at much length by courts and
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commentators. This Court’s dicta in Williamson County, supra, at 194-197,
Concurrence Opinion
with whom Justice Ginsburg joins, concurring in part and concurring in the judgment.
I agree that no unconstitutional taking of property occurred in this case, and I therefore join Parts I, IV, and V of today’s opinion. I cannot join Parts II and III, however, for in those Parts the plurality unnecessarily addresses questions of constitutional law that are better left for another day.
In Part II of its opinion, see ante, at 713-715,
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Const., Amdt. 5. And in doing so it finds “irrelevant” that the “particular state actor” that takes private property (or unconstitutionally redefines state property law) is the judicial branch, rather than the executive or legislative branch. Ante, at 715,
In Part III, the plurality determines that it is “not obviously appropriate” to apply this Court’s “ ‘fair and substantial basis’ ” test, familiar from our adequate and independent state ground jurisprudence, when evaluating whether a state-court property decision enacts an unconstitutional taking. Ante, at 726,
I do not claim that all of these conclusions are unsound. I do not know. But I do know that, if we were to express our views on these questions, we would invite a host of federal
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complexity. Hence, the approach the plurality would take today threatens to open the federal-court doors to constitutional review of many, perhaps large numbers of, state-law cases in an area of law familiar to state, but not federal, judges. And the failure of that approach to set forth procedural limitations or canons of deference would create the distinct possibility that federal judges would play a major role in the shaping of a matter of significant state interest—state рroperty law.
The plurality criticizes me for my cautious approach, and states that I “cannot decide that petitioner’s claim fails without first deciding what a valid claim would consist of.” Ante, at 717,
In the past, Members of this Court have warned us that, when faced with difficult constitutional questions, we should “confine ourselves to deciding only what is necessary to the disposition of the immediate case.” Whitehouse v. Illinois Central R. Co.,
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of a constitutional nature unless absolutely necessary to a decision of the case” (citations and internal quotation marks omitted)). I heed this advice here. There is no need now to decide more than what the Court decides in Parts IV and V, namely, that the Florida Supreme Court’s decision in this case did not amount to a “judicial taking.”