Safriet says his clients were willing to take that risk.
Justice Kennedy wonders how the court would ever measure judicial taking, even if there were such a thing. What would a madcap judiciary do that would be so out-of-bounds as to constitute a judicial taking? "Would we just find all sorts of adjectives—sudden, unexpected, unfounded?" He adds that even if he were willing to invent a doctrine of judicial takings, he doesn't want to "have to become real experts in Florida law." He's not all that sure the Florida Supreme Court did anything all that out-of-bounds, anyhow. "It's a close case," says Kennedy. "It might have gone either way."
The Chief Justice asks a hypothetical in which someone essentially runs for the Florida Supreme Court by promising to have a position on judicial takings. Say they changed the law of takings? Would that represent a judicial taking?
Justice Samuel Alito, formerly the founder of the "pay-per-view, human sacrifice channel," wonders whether the city, in an effort to "attract more students … for spring break," could create a "huge beach in front of privately owned homes" and "have televised spring-break beach parties" there. Florida Solicitor General Scott D. Makar reminds the good justice that "this is the Beach and Shore Preservation Act. It isn't designed to create some recreational playground for spring breakers." Scalia quickly invents "the Spring Break Act of 2010" (wherein you party on that 3-foot stretch of wet beach like there's no tomorrow).
When Makar concedes the state could pass a spring-break-party-promoting act, Breyer gets angry at him for giving up the hypo, pointing out that the statute goes out of its way to ensure that residents don't lose any of their current rights to access or enjoy the beach. They just lose the right to contact the water. The chief justice gets even angrier: "But that is what the whole case is about, whether they have a right to contact the water or not. It seems to me if your only answer to every question is they don't have the right, you're just completely begging the question."
Kennedy frets that Makar hasn't answered Alito's beach party hypothetical. He's worried about whether "Porta-Johns" are going to start to dot the edges of America's private beaches.
Edwin Kneedler * has 10 minutes to represent the Justice Department, which sides with Florida in this litigation. He tries to get the court to sidestep the whole "judicial takings" issue, which Roberts promptly dismisses as a "clever ploy." Kennedy needles Kneedler on why the Florida Supreme Court failed to cite the one case that represents the best authority for its conclusion. The chief justice asks whether Florida could put up an amusement park on its strip of state property. Kneedler reminds the court that under Washington state law you might be able to, but Florida is far more protective of its private-property owners.
Underwater hot dog stands! Flat Stanley beach parties! Porta-Johns! These and other unimaginable horrors represent the nightmarish consequences of judicially blurring the already blurry line between public and private Florida beaches. It's only when one begins to consider how truly terrifying this whole towel-spreading, hot-dog-eating, hand-jive-performing American public really is in the eyes of some members of the court that one can understand why they are willing to fight for their own privacy like it's—well, like it's still 1965.
Correction, Dec. 3, 2009: The original article misspelled Edwin Kneedler's name. (Return to the corrected sentence.)