NY Times On Stop The Beach Renourishment: Justice Thurgood Marshall Had "Harebrained" Ideas

In its Thursday editorial, Common Sense and Private Property, the New York Times barely conceals its derision for both the property owners who instituted takings claims in Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-1151, and the four-Justice plurality who set forth the standards for judicial takings, but who couldn't convince a fifth that this was the right case in which to adopt those standards:

Not a single Supreme Court justice agreed with the harebrained notion that some Florida property owners were entitled to the extra land created when the state widened the beach in front of their houses. But in an opinion issued Thursday, four justices came very close to creating an equally harebrained precedent: that a court decision about the application of a state’s property laws can amount to a "taking" of private property, as if a city or state had confiscated it.

Let's put aside for the moment the fact the Times overstates the judicial takings theory (it's not that a court's decision merely "applying a state's property laws can amount to a 'taking' of private property," it's when a court's decision changes or abolishes settled expectations of what a state's property laws entail, and effectively confiscates what was private property for the public); if the theory of judicial takings is "harebrained," where did the idea that an exercise of a state's judicial power could take property come from?

The notion that a state or local government exercise of the police power could be a taking  had its modern genesis in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). Because the Fourteenth and Fifth Amendments do not just limit a state's exercise of police power but also its exercise of judicial power, there is nothing about a state court decision inherently immunizing it from similar constraints. The Times' editorial, however, implies that a state court should be able to redefine state property law without limits, even if doing so results in an abrogation of established rules.

Perhaps the most cogent refutation of the claim that the theory of judicial takings is "harebrained" comes from Justice Thurgood Marshall (that notorious right-wing jurist), who in his concurring opinion in PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980),  wrote:

I do not understand the Court to suggest that rights of property are to be defined solely by state law, or that there is no federal constitutional barrier to the abrogation of common law rights by Congress or a state government. The constitutional terms "life, liberty, and property" do not derive their meaning solely from the provisions of positive law. They have a normative dimension as well, establishing a sphere of private autonomy which government is bound to respect.

PruneYard, 447 U.S. at 93-94 (Marshall, J., concurring).

In PruneYard, the California Supreme Court interpreted the free speech provision in the California Constitution to provide greater rights than under the First Amendment, and reinterpreted California law to allow "speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned." Robins v. Pruneyard Shopping Center, 592 P.2d 341, 347 (Cal. 1979). The California Supreme Court expressly overruled its decision in an earlier case which held to the contrary. PruneYard, 447 U.S. at 78. The shopping center owner appealed to the U.S. Supreme Court, asserting the California Supreme Court's decision was a taking of the right to exclude others – "which is a fundamental component of their federally protected property rights" – by "judicial reconstruction of [California’s] laws of private property." Id. at 79. The U.S. Supreme Court concluded that no taking occurred because the shopping center "failed to demonstrate that the 'right to exclude others' is so essential to the use or economic value of their property that the state authorized limitation of it amounted to a 'taking.'" PruneYard, 447 U.S. at 84.

Justice Marshall agreed that PruneYard was not the case in which a state court decision took property. But he explained that there is nothing especially sacrosanct about state property rules which make them immune from the Takings Clause: 

Quite serious constitutional questions might be raised if a legislature attempted to abolish certain categories of common-law rights in some general way. Indeed, our cases demonstrate that there are limits on governmental authority to abolish "core" common-law rights, including rights against trespass, at least without a compelling showing of necessity or a provision for a reasonable alternative remedy.

PruneYard, 447 U.S. at 93-94 (Marshall, J., concurring).

There you have it: the "harebrained" judicial takings theory in a nutshell.