Scholarly response to the Supreme Court's decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection has focused on the plurality's strong advocacy of a judicial takings doctrine. We take a different tack. While the concept of judicial takings is worthy of serious attention, it is wrong to treat the plurality opinion as an ordinary object of analysis. It is, instead, the emanation of a Court going rogue.
Three basic symptoms of the pathology stand out. First, sleight of hand. The plurality opinion purports to be about an institutional issue-can a state court commit a taking? - while slipping in a major rewrite of takings law that would undermine the Court's recent, unanimous effort to clarify it. Second, feigned obliviousness: The plurality opinion conveniently overlooks the Court's federalism jurisprudence even as it would expand the federal courts' power over state law. Third, knowing artlessness: Despite being written as a virtuoso performance -identifying a case the Florida Supreme Court "overlooked"- the plurality's treatment of state law betrays surprising naïveté as to how state law is made, though, as it turns out, this seeming naïveté serves the purpose of shifting power within states from legislatures to courts.
While the history and tone of Justice Scalia's close attention to beach access issues makes pique a surprisingly strong candidate for why the plurality went rogue, the more worrying explanation is the willingness of the Court's more conservative members to expand their own power into new areas of state law without the slightest sign of support from the political branches. There is a danger that conservative attacks on courts over decisions on controversial social issues will distract from a more basic problem: If the Court's enforcement of federalism rests on what Justice O'Connor called Congress's "underdeveloped capacity for self-restraint," we suggest that commentary should focus on the Court's own similarly underdeveloped capacity.
Mary Doyle and Stephen J. Schnably, Going Rogue: Stop the Beach Renourishment as an Object of Morbid Fascination, 64 Hastings L.J. 83 (2012).