The confirmation hearings that get underway today on Elena Kagan’s nomination to the U.S. Supreme Court are, in the cosmic scheme of things, a sideshow.
If she is confirmed, Kagan is expected to replace retiring Justice John Paul Stevens in the court’s bloc of four reliably “liberal” justices. (I dislike the liberal/conservative labels because they have such rubbery definitions, but for lack of a better alternative, here is my take: Liberal justices favor less government power in matters of biology and the bedroom, and greater power in most other spheres; conservative justices the opposite.) If the Senate unexpectedly rejects Kagan, President Obama will nominate another presumed liberal jurist instead. The court’s balance of power will not change.
The real action will come when a liberal president has an opportunity to replace one of the high court’s conservative justices or vice-versa, a situation that has not arisen since Clarence Thomas succeeded Thurgood Marshall in 1991.
The stakes go far beyond the usual hot-button issues of abortion, same-sex relationships, the death penalty and affirmative action. Nobody has forgotten how, a decade ago, the court’s narrow conservative majority sounded the final buzzer on Florida’s election recount in Bush v. Gore. Nor how, earlier this year, a similar 5-4 court declared in Citizens United v. Federal Elections Commission that the government may not prohibit corporations and labor unions from buying political advertisements.
Now the Court’s four core conservatives — Chief Justice John Roberts and Justices Thomas, Antonin Scalia and Samuel Alito — have signaled they may look for an opportunity to limit government powers to take private property or restrict its use without compensation. Justice Anthony Kennedy, the court’s conservative-leaning swing vote, is characteristically keeping his cards closer to his vest.
Any broad changes in this area of the law could affect every zoning board, environmental agency and public utility district in the country. This is a big deal. Yet, in one of the curious twists that litigation can sometimes produce, the Gang of Four sent its signal in a case that the court decided 8-0 in favor of the state of Florida.
As I discussed in this space last December, a group of oceanfront landowners in the city of Destin went to court in 2003 after the city announced plans to restore 6.9 miles of beach that had been eroded by hurricanes. Under Florida’s Beach and Shore Preservation Act, the city would have created a new 75-foot-wide strip of publicly owned sand between the landowners’ private property and the high-tide line, which in Florida usually marks the boundary between private property and public shoreline.
Land with ocean frontage is more valuable than land that merely has an ocean view. Neither the city of Destin nor the state of Florida planned to compensate landowners for taking away their property’s water frontage. The landowners argued that the beach renourishment plan violated the Fifth Amendment by depriving them of property rights without just compensation.
In addition to having contact with the water at high tide, owners of oceanfront property generally have a right to accretions. This means that, as shorefront land widens gradually over time due to the build-up of sand or sediment, the new land created above the high tide line belongs to the private landowner. After the beach restoration project, the Destin landowners would no longer own the land at the shoreline and therefore would lose their ownership interest in any new land that accumulates there.
The case rose to the Florida Supreme Court, which ruled against the landowners. The court found that, under Florida law, waterfront landowners have the right to have access to the water, the right to reasonably use the water, the right to accretion and reliction (new land formed when the water level declines), and the right to an unobstructed view of the water, but no right to contact with the water at high tide. The court also determined that a right to accretion and reliction is merely a contingent future interest, which “only becomes a posessory interest if and when land is added to the upland by accretion or reliction.” The landowners, therefore, were not entitled to any compensation as a result of losing the ability to potentially gain land in the future.
In their appeal to the U.S. Supreme Court, the landowners argued that, through its ruling, the Florida Supreme Court had itself deprived them of their property rights. The Florida court’s ruling did not just interpret or clarify the laws, they claimed; it changed them. Before the ruling, under the laws of Florida, they had valuable rights to contact with the water at high tide and to future accretions. After the ruling, they didn’t. The Florida Supreme Court was to blame for their loss.
Justice John Paul Stevens recused himself, presumably because he owns a beachfront apartment in Fort Lauderdale. The other eight justices decided unanimously that the Florida Supreme Court did not violate the landowners’ Fifth Amendment rights to compensation for their property rights. The rights had never been firmly established under Florida law, the court determined, and therefore the landowners could not be entitled to compensation for the loss of something that it was not clear they had ever possessed.
“The result under Florida law may seem counterintuitive,” Scalia wrote. “After all, the Member’s property has been deprived of its character (and value) as oceanfront property by the State’s artificial creation of an avulsion [a sudden change in what land is submerged]. Perhaps state-created avulsions ought to be treated differently from other avulsions insofar as the property right to accretion is concerned. But nothing in prior Florida law makes such a distinction.” The ruling went on to say, with a hint of regret, “The Takings Clause only protects property rights as they are established under state law, not as they might have been established or ought to have been established.”
Up to this point the eight justices were unanimous. But then the Gang of Four went further, in a portion of Scalia’s opinion that was joined by only his fellow core conservatives. Scalia chose to take on the question of whether the judicial branch could ever be guilty of unconstitutional taking. Kennedy and the three participating liberal justices (Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor) concluded that this was irrelevant to the case at hand, since they had already determined that there was no property right that could have been taken. In my view, the liberals were proceeding as appellate courts usually do, by deciding only the issues that actually needed to be decided.
But the Gang of Four seemed to be spoiling for this particular fight. Scalia wrote that the question of whether a judicial decision can represent an unconstitutional taking was central to the Destin case. He then answered his own question: “The Takings Clause bars the State from taking private property without paying for it, no matter which branch is the instrument of the taking.”
Reading between the lines of Scalia’s comments, I see a conservative bloc that is eager for a rematch of a case it lost, in the court’s 2005 Kelo v. City of New London decision. In that case, Kennedy sided with the liberal wing to hold that a government could exercise eminent domain to transfer ownership from one private owner to another in the interest of economic development. The case sparked outrage across the country, as homeowners feared that they would be kicked out of their homes to make way for shopping malls and convention centers. A number of states changed their laws to restrict such eminent domain actions in the future. In New York, which still permits such takings, a similar controversy is underway over expansion plans by Columbia University that would displace residents of a gentrifying neighborhood that is nevertheless being declared “blighted.” New York’s highest court upheld the eminent domain action last week.
The Supreme Court conservatives seem to be saying that if the Kelo decision establishes that government has broad power to take private property, the courts should at least require in a future case that government must pay for what it takes. This could lead the justices to revisit a chain of decisions all the way back to 1926, when, in Village of Euclid v. Ambler Realty Co., the Court first found that most zoning actions by local governments are not unconsititutional takings.
It is always dicey to predict how someone’s future experiences will shape his or her decisions, and never more so than in the case of a Supreme Court nominee who, like Kagan, has no prior judicial record. My expectation that she will not alter the court’s balance of power may be proved wrong almost immediately, or it may be right in the near future and wrong later. Nobody has a crystal ball, though the odds are pretty good that she will be the kind of justice Obama thinks she will be.
No crystal ball is needed to see that the court’s future makeup is going to touch every American life. The lines are being drawn today for battles that may not be fought for years to come.