Counting votes and discounting holdings in the Supreme Court's takings cases.

• Author: Lazarus, Richard J.
• Position: Defining Takings: Private Property and the Future of Government Regulation

The regulatory takings issue is notoriously muddled.(1) Dramatically opposing views regarding the proper relationship between private property and government regulation consistently have polarized scholarly debate.(2) The Supreme Court today seems no less splintered on the issue's proper resolution than it was when it first embarked down the regulatory takings path with Justice Holmes's opinion for the Court in Pennsylvania Coal Co. v. Mahon,(3) from which Justice Brandeis sharply dissented. The Court's regulatory takings decisions are among its most contentious. Many are decided by closely divided votes.(4) Individual Justices seem to waver with regularity on the issues, prompting majorities in one case to become dissents in another, and vice versa, thereby further deepening the precedental confusion.(5)

This Essay focuses on a dimension of the regulatory takings issue that has received relatively little attention in what is otherwise a vast amount of literature on the topic: Why the Court is so persistently splintered and its precedent so seemingly schizophrenic. Most academic discussion has focused on the sheer difficulty of reconciling the public's firmly held conception of sacrosanct private property rights with the public's increasing demand for restrictions on the exercise of those same rights when they affect others adversely.(6) This Essay's thesis is that reasons for this phenomenon exist beyond those that have dominated the ongoing academic discourse. These additional reasons are best revealed by piercing the popular fiction that the Court is a monolithic institution. The Court's decisions should instead be read keeping in mind the fact that the Court is simply nine individual Justices who speak through the voice of shifting coalitions of at least five Justices.

Such a piercing of the Court's judicial veil offers three lessons about regulatory takings. First, it suggests the propriety of discounting the import of the Court's precedent in individual cases and the futility of reconciling what may be, at bottom, irreconcilable rulings. Advocates and legal academics who ignore this lesson routinely conflate the significance of the Court's precedent in takings cases.

Second, by identifying the underlying reasons for the Court's splintering and shifting majorities, students of the regulatory takings issue, as well as members of the regulatory and regulated communities, can appreciate better the full dimensions of the issue. By examining the votes of individual Justices in each of the cases, the questions asked at oral argument, and the arguments made in the briefs, one discovers the full panoply of factors that have influenced the Justices in takings cases. These factors extend beyond the traditional debate between prepolitical and civic conceptions of property. By tugging in an oppositional fashion at the Justices, these factors implicate a host of crosscutting issues that make maintaining the development of a stable majority on regulatory takings issues especially difficult.

Finally, a more focused examination of the individual Justices suggests the kinds of arguments that a new majority coalition of Justices now on the Court might find acceptable. Justice Kennedy will be the decisive vote in the establishment of this new majority, and pragmatism will need to replace adherence to purist principles in any advocacy designed to promote an analytical framework capable of being embraced by a new majority led by Justice Kennedy.

This Essay consists of three parts, followed by a brief conclusion. The three parts roughly mirror the three lessons to be learned in undertaking a closer examination of the reasons why the Court's regulatory takings precedent exhibits such conflict and doctrinal instability. First, the Essay describes the general benefit gained from thinking of the Court as nine distinct Justices in analyzing the Court's precedent, with illustrations from the Court's takings precedent. Next, in an effort to identify the wide-ranging factors that actually are at work in establishing a majority on the Court in particular cases, the Essay explores a variety of source materials, ranging from opinions of individual Justices to oral argument transcripts to the briefs of the advocates themselves. Finally, the Essay makes a preliminary attempt to identify an analytical framework for the regulatory takings issue that, although lacking purity of principle and perhaps bordering on the nihilistic, may provide instead the level of pragmatism necessary to strike an acceptable balance between opposing views.

1. LESSON NUMBER ONE: THE SIGNIFICANCE OF THE CONSTITUTION'S "RULE OF FIVE" FOR UNDERSTANDING AND RELYING UPON THE COURT'S REGULATORY TAKINGS PRECEDENT

   Supreme Court lore reports that Justice Brennan would ask his new law clerks to identify the single most important rule of constitutional law. Following a heated debate, with each law clerk undoubtedly seeking to impress the Justice with his or her profound understanding of federal constitutional law, Justice Brennan reportedly would announce them all wrong. The most important rule, he would declare, is the "rule of five"--i.e., the Court decides cases by a majority vote of at least five Justices.(7) Justice Brennan reportedly practiced what he preached. Upon his resignation from the Court, many testified to his special ability to forge surprising majority coalitions in controversial cases.(8)

   The regulatory takings cases illustrate well the importance of the "rule of five." Many of the decisions have only five Justices joining the majority opinion, and there has been no consistent majority.(9) The difference between the majority and dissent has been stark, just as it first was in Pennsylvania Coal Co. v. Mahon.(10) The reasoning of the majority in one case becomes that of the dissent in the next (and vice versa)--sometimes with very little time separating the Court's changing decisions.

   Consider, for example, the Court's famed 1986 Term takings trilogy, wherein the Court decided in rapid succession three significant regulatory takings cases: Keystone Bituminous Coal Ass'n v. DeBenedictis,(11) decided in March, and First English Evangelical Lutheran Church v. County of Los Angeles(12) and Nollan v. California Coastal Commission,(13) both decided in June. Keystone Bituminous and Nollan are rooted in wholly incompatible notions of the relationship between private property and police power regulation.(14) Although to a lesser extent, it is similarly difficult to square the jurisprudential underpinnings of First English with the Court's ruling in Keystone Bituminous.(15)

   If one views the Court as a monolith, it is very difficult to discern the theory that unifies these three rulings. The Court certainly makes little, if any, effort to do so. If one instead views the Court as reflecting coalitions of individual Justices, the picture becomes more clear. Justice White was the only Justice in the majority in all three cases, but he wrote none of the opinions for the Court;(16) nor did he write any separate concurring opinions. It is therefore more important to ask what made a difference for Justice White in these cases than to undertake a fictional inquiry into the Court's unifying theory in support of these three rulings.

   Examining the votes of individual Justices also suggests the real possibility that one of the most discussed of regulatory takings cases in recent years, Lucas v. South Carolina Coastal Council,(17) no longer represents viable precedent, at least in the United States Supreme Court. As in many of the regulatory takings cases, only five Justices joined the Court's majority in Lucas.(18) Justice White was, again, the decisive vote. What very few have remarked upon, however, is that Justice White announced his resignation from the Court less than a year after Lucas was decided.(19)

   Hence, the slim Lucas majority vanished almost upon its arrival. There are no longer five Justices on the Court who clearly support Justice Scalia's rationale. Yet, commentator after commentator insists on treating Lucas as weighty precedent, without remarking on its current vulnerability.(20) Lucas is, of course, entitled to dispositive weight in the lower courts. Those courts are supposed to adhere to Supreme Court precedent until it is modified formally,(21) no matter how clear it may be that shifts in the Court's composition will prompt its undoing as soon as the Court again addresses the issue. The Supreme Court is not similarly circumscribed.(22) In the Supreme Court, one should expect Lucas to receive a very narrow reading.

   Indeed, the litigation before the Court in Lucas reflected a similar development. The Court's decision in Keystone Bituminous provided those defending the South Carolina Coastal Council with seemingly powerful precedent in support of the challenged South Carolina coastal development law.(23) The holding in Keystone Bituminous seemed unequivocal; the Court largely limited Pennsylvania Coal to its facts, concluding that a taking had not occurred and that the state can properly exercise its police power "to abate activity akin to a public nuisance."(24) All of the litigants before the Court in Lucas, however, were well aware that despite its recent vintage, Keystone Bituminous was shaky, and therefore risky, precedent upon which to rely. At the time that Lucas was decided, the Court consisted of three Justices (Stevens, White, and Blackmun) from the Keystone Bituminous majority and three (Rehnquist, Scalia, and O'Connor) from the dissent. At least two (Thomas and Kennedy) of the three new Justices seemed inclined to follow the Keystone Bituminous dissenters.(25) For this reason, it was risky for government lawyers in Lucas to rely heavily on Keystone if they hoped to obtain Justice O'Connor's vote. Although they needed the vote of Justice White, who was in the Keystone majority, government lawyers could not afford to alienate Justice...