Counting Votes and Discounting Holdings in the Supreme Court's Takings Cases

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. …