In 2010, the Supreme Court decided Stop the Beach v. Florida, a property rights case that considered whether there could be a judicial taking. Though Justice Stevens participated in oral arguments, he ultimately recused in the case. At the time, Tony Mauro had this account:

Stevens declined to discuss the matter, but a possible explanation is offered by Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute, which filed a brief in the case on the side of property owners. Shapiro said that “a fan of Cato” he won’t name sent him public documents about Stevens’ condominium property in Ft. Lauderdale. The documents indicate that the justice’s property is within a renourishment zone similar to the property at issue in the case.

Shapiro said he did not file a recusal motion asking Stevens to bow out, because it “might seem self-serving.” Conventional wisdom, Shapiro added, puts Stevens in the camp of justices who would approve of the government program, so “it seemed that not having him in the case would help the property owners.”

Instead, Shapiro sent the material to several journalists, at least one of whom, he said, conveyed the information to Stevens and asked for comment, without success. Nothing more was heard on the subject until the argument began with Stevens not on the bench.

For purposes of full disclosure, I also received these documents, but decided not to make them public, and did not agree with my frequent co-authors decision.

Stevens’s recusal ultimately made the difference, as the Court split 4-4 on the topic of whether there could be a judicial taking. At the time, Tony Mauro asked:

Four justices said a judicial decision that extinguishes property rights can be viewed as a taking under the Takings Clause, but four other justices said that issue did not need to be resolved in this case. In either case, the Court was unanimous in upholding a Florida Supreme Court decision about oceanfront property lines that a group of affected property owners had challenged.

What about the ninth vote? That was missing, because Justice John Paul Stevens had recused abruptly in the case at the oral argument stage.  And though it’s hard to say for sure how the case would have turned out if Stevens had stayed in the case, there probably would have been a majority for some proposition — making it clear yet again that the recusal of a single justice can make a big difference in a case . . .

Now that the Court’s decision is being viewed as a defeat for the Florida property owners Shapiro sought to help, does Shapiro regret having worked to bump Stevens off the case? No, he said this afternoon. “Our position lost,” Shapiro said, “but on the issue we were concerned about, the ball advanced.” Stevens might have provided a fifth vote against ever viewing judicial decisions as takings, Shapiro explained, so having a four-justice bloc led by Antonin Scalia that takes the opposite view without being contradicted is helpful. “State courts are going to be wary about interrupting long-held property rights” in the wake of today’s decision, Shapiro said.

So what about that 9th vote? Now we know. In a speech Justice Stevens gave at Chicago-Kent College of Law, he would have voted with Justice BReyer to to not resolve the judicial takings issue.
First Stevens comments about how he came to recuse.

Following the Florida Supreme Court’s denial of the rehearing petition, Stop the Beach petitioned for certiorari in the United States Supreme Court. 28 I participated in the Conference at which the cert petition was considered. At that time I did not see how the outcome of the case could possibly impact the value of the condominium that my wife Maryan owns in Fort Lauderdale, Florida, or my own enjoyment of one of the most beautiful beaches in the world. The thought of disqualifying myself did not occur to me then. After the Court granted certiorari, however, news stories suggesting that we might have an interest in the outcome persuaded me to recuse myself, so I did not thereafter participate in the decision of the case. 29 Had I done so, I would have tried to persuade my colleagues to dismiss the case as having been improvidently granted reVlew, because there was no justification for using it as a vehicle for discussing the subject of judicial takings.

However, Stevens goes on to explain how he would have voted.

Ultimately, my recusal did not affect the Court’s disposition of case. Both Justice Kennedy and Justice Breyer explained in their separate opinions that there was no need to decide the judicial takings issue since the Court unanimously agreed that there was no merit to the claim that Florida’s actions constituted any form of taking. Nevertheless, Justice Scalia wrote an opinion that spoke for a plurality of four Justices in espousing a theory of  judicial takings.  The remainder of his opinion spoke for the entire Court in affirming the Florida Supreme Court’s conclusion that there had been no taking. 32 In his talk at this law school last year, he was critical of his colleagues for their failure to join his advisory opinion about the subject of judicial takings

And for good measure he refers to Justice Scalia’s opinion as an “advisory opinion” (those are unconstitutional by the way):

Had I participated in deciding the case, I also would have refused to join Justice Scalia’s advisory opinion, and probably would have identified at least three reasons for not discussing the subject of judicial takings in that case. First, if there had been any taking in the case, it would not have been a “judicial” taking. Any taking that might have occurred was effected either when the Florida state legislature passed the statute authorizing the creation of new permanent unchanging property lines to replace the ever-changing common law lines, or when the agency actually set the property lines that would preclude petitioners from acquiring further land by accretion.

The next portion of Stevens’s comments is even more interesting, as it focuses on what provision of the Constitution would be at play:

The second point I would have stressed had I participated in deciding Stop the Beach is that it lS the Due Process Clause of the Fourteenth Amendment, rather than the Takings Clause of the Fifth Amendment, that gives federal courts the authority to decide whether state judicial decisions announclng new rules of law violate the Federal constitution. While the Court’s 1897 decision in Chicago, B. & Q. R. Co. v. Chicago 39 is often cited for the proposition that the Fifth Amendment Takings Clause has been incorporated by the Fourteenth Amendment and therefore applies to state action,40 in fact Chicago did not even cite the Fifth Amendment. As Justice Scalia more accurately stated In his Stop the Beach plurality opinion, Chicago held “that the Due Process Clause of the Fourteenth Amendment prohibits uncompensated takings. ,,41 In reaching that conclusion, the Chicago Court also answered in the affirmative the antecedent question whether the Due Process Clause applies to matters of substance as well as procedure. 42

Steven is right. Chicago B. & Q R. Co. did not “incorporate” the takings clause.

Next, Stevens elaborates on the interplay between the 5th and 14th Amendments with respect to takings.

Even if we assume that the scope of the Fifth Amendment’s limitation on the scope of a government’s power to condemn private property is coextensive with the Fourteenth’s, it is noteworthy that neither the text nor the history of the Fifth Amendment’s Takings Clause places any limit on the scope of that power; the Clause imposes only a requirement that just compensation be provided for a taking. 46 Prior to the adoption of the Constitution, uncompensated takings had occurred both in England and in some States. 47 That history explains why the text of the Takings Clause prohibits uncompensated takings.

And here is he going into Kelo, a case he authored

But the text does not limit the circumstances in which the government may take property. Instead, under the common law, as well as under the Due Process Clause, it was assumed that any taking, just like any regulation of the use of private property, must be justified by a public purpose. 48 The omission in the Takings Clause of any textual restriction on when the taking power may be exercised is consistent with the view that the prohibition against deprivations of property without due process expressed ln both the Fifth and the Fourteenth Amendments is the true source of the prohibition against takings for a purely private purpose.

In short, judicial takings–which Stevens calls judicial depravations–should be grounded in a deprivation of a property interest under the 14th Amendment:

If the Court is to adopt a new judge-made doctrine expanding its authority to review the constitutionality of state appellate court opinions, it should be called “judicial deprivations” rather than “judicial takings,” for surely such a doctrine should apply to deprivations of liberty as well as deprivations of property. Beach restoration projects affect public beaches as well as private beaches, and may affect liberty interests as well as property interests. such projects theoretically could result in unconstitutional rules that deprive individual citizens of previously established rights to use public beaches and to walk along the shore of private beaches in the area between the high water mark and the low water mark.

Then, Stevens goes onto continue criticizing Scalia,  who has argued in the past that substantive due process cannot do the work of another amendment in the Constitution (such as the takings clause)– a view expressed by Scalia in Albright v. Oliver (this is also a big aspect of Scalia’s McDonald concurrence, though stevens does not go there here). Stevens reaffirms his belief that Justice Harlan’s dissent in Poe v. Ullman–the position that Stevens and Stevens alone adopted in McDonald was the property approach.

Instead, I explained, the Court had endorsed the reasoning Justice Harlan’s eloquent dissent in Poe v. Ullman, which described substantive due process as a guarantee of ~freedom from all substantial arbitrary impositions and purposeless restraints. ,,59

And then, cue Bernstein’s Law, Stevens talks about Lochner.

Still, it is qui wrong to say, as Justice Scalia did, that this doctrine, which has developed over the years through the common law process of adjudication and is appropriately respectful of judicial precedent, is ·so flabby, so susceptible to judicial ~pse dixit, that it creates a huge reservoir u65 of discretion (that is to say, power) in the courts. On occasion, a majority of the Supreme Court has misused the doctrine, most notably in the Lochner case,66 and again recently in McDonald v. Chicago, which held that a constitutional provision the Second Amendment – that was adopted to protect state control of their own militias should give federal judges a veto power over state regulations relating to firearms. 67 But generally speaking, in the area of takings by state official action, the Court’s reliance on substantive due process doctrine – often articulated as the “incorporation” of the Fifth Amendment’s Takings Clause into the Fourteenth Amendment – has produced an acceptable body of law

What’s funny is that Scalia accused Kennedy of Lochnerism in Stop the Beach. It goes both ways!

 JUSTICE KENNEDY’s language (“If a judicial decision . . . eliminatesan established property right, the judgment could be set aside as a deprivation of property without due process of law,” post, at 3) propels us back to what is referred to (usually deprecatingly) as “the Lochner era.” See Lochner v. New York, 198 U. S 45, 56–58 (1905).

Stevens’s third point goes into Brandeis’s opinion in Ashwander, yadda yadda yadda.

I am sure Justice Brandeis would not have joined Justice Scalia’s plurality opinion in Stop the Beach. Nor do I believe that Justice Brandeis would have found the reasoning in Justice Scalia’s comments about that case in this forum last year persuasive. Those comments surely would not have affected my vote had I not been recused.

Between Posner and Stevens, Nino is getting flanked from all angles.

Does this trouble anyone else? Justice Stevens keeps telling people how he would have voted in cases decided after he left the Court. Now he is telling us how he would have voted (save the recusal) for a case while he was at the Court. Why did he retire?

H/T Mike Sacks