The Takings Clause and the Advent of Judicial Takings

This summer, the U.S. Supreme Court added a new wrinkle to eminent domain jurisprudence, the concept of a “judicial taking.” Justice John Paul Stevens took no part in the decision, and the remaining eight justices were evenly split on the issue of whether a state supreme court’s decision could constitute a “taking without just compensation” in violation of the Fifth Amendment if it rendered a decision that altered settled state property law rights. The decision provides practitioners with another weapon in the arsenal of property rights protection. The potency of that weapon, however, remains uncertain since a clear majority was not obtained.

The court framed the issue in Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection as follows: “consider a claim that the decision of a state’s court of last resort took property without just compensation in violation of the Takings Clause of the Fifth Amendment, as applied against the states through the Fourteenth.”