Justices Sonia Sotomayor and Neil Gorsuch are on opposite sides of some of the biggest Supreme Court cases, but they were together Monday in a case that raised what they agreed was an important question: Does the Constitution provide for compensation when the government damages private property using its police power?
The issue arose in an appeal from Vicki Baker, whose Texas home police damaged to pursue a fugitive inside (Baker wasn’t involved in wrongdoing). Had her home been razed to build a public park, she would’ve “undoubtedly” been entitled to compensation under the Fifth Amendment’s takings clause, Sotomayor wrote in a statement joined by Gorsuch. The clause says private property shall not “be taken for public use, without just compensation.”
But in this case, Sotomayor noted, police destroyed Baker’s home “for a different public benefit: to protect local residents and themselves from an armed and dangerous individual.” She wrote that the appeal raised the “serious question” of “whether the Takings Clause permits the government to destroy private property without paying just compensation, as long as the government had no choice but to do so.”
Notably, Sotomayor’s opinion wasn’t a dissent from the court’s refusal to take up Baker’s appeal against the Texas city of McKinney. Rather, the justice wrote to highlight the importance of the issue in her (and Gorsuch’s) view, but said it needs further development in the lower courts before the Supreme Court weighs in.
So if the issue comes back to the court after that further development, then there are at least two justices interested in taking it up. It takes four justices to grant review.
Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
