In its ruling today in Stop the Beach Renourishment v. Florida Department of Environmental Protection, the Supreme Court was badly divided, producing no majority opinion and leaving the breadth of its impact unclear. Four justices said a judicial decision that extinguishes property rights can be viewed as a taking under the Takings Clause, but four other justices said that issue did not need to be resolved in this case. In either case, the Court was unanimous in upholding a Florida Supreme Court decision about oceanfront property lines that a group of affected property owners had challenged.
What about the ninth vote? That was missing, because Justice John Paul Stevens had recused abruptly in the case at the oral argument stage. And though it's hard to say for sure how the case would have turned out if Stevens had stayed in the case, there probably would have been a majority for some proposition -- making it clear yet again that the recusal of a single justice can make a big difference in a case.
"The fact that Justice Stevens recused in this case was very consequential," said Fordham Law School dean William Treanor, a Takings Clause expert. Stevens has "the narrowest view of the Takings Clause" on the Court, Treanor said, so probably would have been a a vote for the position that judicial rulings can't be takings. At the very least, Stevens' absence "shifted the dynamics" of the Court's decision-making, Treanor said.
As we reported here last December, Stevens recused after Ilya Shapiro, a scholar at the Cato Institute, circulated to the press documents indicating that Stevens' condo in Ft. Lauderdale was in a beach renourishment zone similar to the one involved in the case before the Court. At the time, Shapiro said an unnamed "fan of Cato" had sent him the documents, and he acknowledged that he thought having Stevens recuse might help Florida property owners, on whose side Cato had filed a brief. Stevens recused after a reporter who had received the documents asked him for comment.
Now that the Court's decision is being viewed as a defeat for the Florida property owners Shapiro sought to help, does Shapiro regret having worked to bump Stevens off the case? No, he said this afternoon. "Our position lost," Shapiro said, "but on the issue we were concerned about, the ball advanced." Stevens might have provided a fifth vote against ever viewing judicial decisions as takings, Shapiro explained, so having a four-justice bloc led by Antonin Scalia that takes the opposite view without being contradicted is helpful. "State courts are going to be wary about interrupting long-held property rights" in the wake of today's decision, Shapiro said.