As we predicted in a recent article, the Supreme Court’s latest takings decision in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010) has been “a boon for academics who may continue the search for the ‘takings quark’ (if not woodchucks) in the pages of law journals.” Adding to the growing list of scholary takes on the case — sorry, we could not resist the pun — is Georgetown lawprof J. Peter Byrne who has posted Stop the Stop the Beach Plurality!, a forthcoming article to be published by the Ecology Law Quarterly.
Comparing Stop the Beach Renourishment to Bush v. Gore, the article — the tone of which is worthy of a Scalia dissent and is entertaining reading even if you don’t buy his analysis — makes no effort to hide his disdain for the plurality opinion. Professor Byrne (who perhaps is a reader of this blog, see footnote 52 on page 8) argues that not only did the four Justice plurality get it wrong on judicial takings, but that there is no such thing as a regulatory taking, either.
He asserts that opinion’s reliance on “text, history, and ‘common sense’ … makes a mockery of such forms of interpretation, represents raw pursuit of an ideological agenda, and indicates why the Regulatory Takings Doctrine more generally should be abandoned or limited.”
The plurality implicitly admitted the pointlessness of its textual argument by granting the premise of Justice Kennedy‘s criticism, in his concurring opinion, that no one at the time of the adoption of the Takings Clause entertained any idea that it applied to the common law decisions of state judges. In response, the plurality makes two thoroughly unpersuasive arguments. First, it argues that the text of the Takings Clause is so clear that any question of intent or contemporary meaning is irrelevant. This is textualism ad absurdum. The text of the Takings Clause does not state that it applies to judicial decisions, which would be clear. Rather, it fails to identify to whom its command runs, which silence in the text should prompt the conscientious interpreter to look outside the bare words. A judge cannot plausibly rely on such a silence to hold that the clause applies to every branch of government, especially when other traditional and widely accepted methods of interpretation plainly plainly establish that no one intended or understood such a meaning. These are word games, not legal interpretations. Moreover, given that the Court has construed the key and clear word “take” metaphorically to create a flexible check against legal change, its severe literalism here seems chosen opportunistically to reach a conclusion desired for ideological reasons.
3 at (footnotes omitted).
The money quote: “Plainly, the plurality’s textual argument is so much lipstick on a pig.” Come on Professor, don’t hold back … tell us what you really think about the case!