In addition to our summary of and reaction to yesterday's oral arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012), here is the leading commentary from other sources:
- Lyle Denniston at SCOTUSblog: "The very idea that an unconstitutional “taking” had occurred to an owner of a small plot of ground in Florida seemed near to vanishing, propelled toward oblivion by a spreading fear on the bench that maybe the entire regulatory apparatus of government might be at risk. Credit lawyers for a state agency and the federal government for deepening this anxiety."
- Greenwire's Lawrence Hurley: Supreme court: Justices weigh Fla. property rights dispute: "Rather than focus on the two Supreme Court precedents on permitting conditions, some justices seemed to agree with the Obama administration that, if Koontz did have a claim, it would be in the form of a 'regulatory takings' argument that concerns regulations that are so burdensome they can constitute a taking."
- Jonathan Adler at Volokh: scroll down to a comment by "JHW27," who writes: "If Scalia maintains his lonely and bizarre position, the most likely outcome seems to me to be a 5-4 ruling in favor of the government, with an opinion by the four liberals arguing that there is no taking because the regulatory requirement merely required the expenditure of money, a concurring opinion by Scalia arguing that there is no taking because the permit was denied, and a dissenting opinion from the other four conservatives arguing that the distinctions drawn by the five justices in the majority are arbitrary and untenable. But even that would probably not end in a long-term loss for property owners in similar circumstances to Koontz here; the argument would have to be reformulated to win back Scalia, but that would then give them five votes, and it's not clear there would be much shift in substance necessary to accomplish that."
- Gideon Kanner: What Was the Koontz Oral Argument All About? - "Our overall view of this event suggests to us that the Justices are again out of it — e.g. Justice Scalia thought that in Nollan a permit was issued before Nollan sued (it wasn’t — Pat Nollan took his chances and built without city approval and won). Justice Kennedy was still beating his drum in favor of substantive due process with no clue as to whether he also means to relax the forbidding difficulties in winning a regulatory due process case."
- Damon Root at Reason: Scalia Gives the Government a Suprise Boost in Property Rights Case - "But the most surprising resistance came from conservative Justice Antonin Scalia, who questioned whether Koontz had suffered any injury at all under the Takings Clause. 'What has been taken?' Scalia asked Beard. 'The permit’s been denied. I can’t see where there’s a taking here. Nothing’s been taken.' Those words may spell doom for Koontz’s challenge. Scalia is the author of a key 1987 decision by the Supreme Court striking down a California regulatory agency’s imposition of a similarly problematic condition on a building permit. Until his comments in the courtroom on Tuesday morning, Scalia was seen as a solid vote in Koontz’s favor. Now he appears to be the single biggest threat. Without Scalia, Koontz is unlikely to reach the five-justice threshold needed to win."
We'll add others if they are worth reading.
