Stop the Beach served as one of the first opportunities for Justice Sotomayor to show her views on Property Rights. Although she did not write separately, she chose to join Justice Kennedy’s, and not Justice Breyer’s opinion, which Justice Ginsburg joined.

What’s the difference?

Kennedy’s opinion left open the possibility that a judicial taking can happen.  “If and when future cases show that the usual principles, including constitutional ones that constrain the judiciary like due process, are inadequate to pro-tect property owners, then the question whether a judicial decision can effect a taking would be properly presented.”

In contrast, Justice Breyer’s opinion refused to consider whether the judiciary can ever effect a taking.

This choice is quite significant.

My colleague Ilya Somin has previously blogged about Sotomayor’s weak record on property rights. Perhaps this represents a change for the better.