In Stop the Beach, Justice Breyer fears that allowing judicial takings will spawn a lot of litigation. Breyer echoes his concurring opinion in Village of Willowbrook v. Olech. As I wrote in my article on Olech:
Justice Breyer added a brief concurrence to the per curiam opinion.114 Justice Breyer wrote to clarify his agreement, recognizing that “the Court of Appeals found that in this case [the plaintiff] had alleged an extra factor as well-a factor that the Court of Appeals called ‘vindictive action,’ ‘illegitimate animus,’ or ‘ill will.’”115 To Justice Breyer, the ill will factor, which the Supreme Court did not address, was sufficient to assuage his “concern [of] transforming run-of-the-mill zoning cases into cases of constitutional right.”
In Stop the Beach, Breyer wrote that allowing judicial takings would open the floodgates, turning simple property decisions into massive litigation.
Property owners litigatemany thousands of cases involving state property law in state courts each year. Each state-court property decisionmay further affect numerous nonparty property owners as well. Losing parties in many state-court cases may wellbelieve that erroneous judicial decisions have deprivedthem of property rights they previously held and may consequently bring federal takings claims. And a glance at Part IV makes clear that such cases can involve state property law issues of considerable complexity. Hence, the approach the plurality would take today threatens to open the federal court doors to constitutional review of many,perhaps large numbers of, state-law cases in an area of law familiar to state, but not federal, judges. And the failure of that approach to set forth procedural limitations or canons of deference would create the distinct possibility that federal judges would play a major role in the shaping of a matter of significant state interest—state propertylaw.
This is a common thread in Breyer’s opinions. He seeks to create rules that limit litigation. Interesting.