Coming and going


If you've been wondering where I've been lately, I've just come back from an Academy of Appellate Lawyers meeting in Phoenix.  It was full of excellent presentations and material upon which I shall blog anon.  But before that, we must remark upon an event while I was away – Justice Stevens' retirement announcement.

The media has spoken as to how this means the last Protestant is leaving the Court.  Far more earthshaking is the fact that he is also the only Northwestern Law School alum, so, speaking as a Wildcat, I am sad to see him go.  Portraits of illustrious NU grads sometimes floated in and out of places of prominence in our lounge – but the one consistently up front was Justice Stevens.  It was always nice knowing there was a Cubs fan on the bench, sharing our disappointments and hopes for next year. 

I suppose the conventional wisdom is that whomever replaces him will not change the results of the decisionmaking on that court – he was viewed as liberal, so any appointment by President Obama will put another liberal minded Justice in his place.  I will note, however, that Justice Stevens was, among all the justices, however viewed as liberal or conservative, consistently the most hostile to regulatory takings cases.  While I doubt that his replacement will be more welcoming on the substantive front, perhaps there will be some movement on the procedural front to eliminate the mashup caused by Williamson County, 473 U.S. 172 (1985) and San Remo, 545 U.S. 323 (2005).  Basically, given those decisions, it is extremely difficult to ever have a claim that the state is effecting an as-applied regulatory taking violating the U.S. Constitution ever heard in the federal court.  Claimants can only argue their federal claims in state court.  This is counterintuitive on multiple levels, and lately there's been a 5/4 split in expressed willingness to revisit this situation.  However the next Justice views the merits of regulatory takings cases, it's my personal hope that he or she weighs in procedurally on the side of identifying a clear and fair avenue for claimants to have their day in court.