Still Waiting for the Koontz Decision

Among the many important decisions not issued by the Supreme Court this week, it’s easy to forget about Koontz v. St. John’s River Water Management District, which I described here. As co-blogger Jonathan Adler wrote in January, “this could be a very important case — easily the most important property rights case heard by the Roberts Court to date.”

Most observers believed that the oral argument went badly for the property owner (see, e.g., here and here), and therefore expected a major win for the government. Such an outcome is still very possible. However, cases that are held until the very end of a term are usually closely divided and controversial. That suggests we might be in for a close 5-4 or 6-3 decision. Tim Mulvaney’s prediction that the case could be a close call, with a “highly fractured” Court, may turn out to be prescient. The property owner could even eke out an unexpected victory, though that is still less likely, in my view, than a close win for the government. In order for the property owners to prevail, Justice Scalia would likely have to step back from the position he seemed to take during the oral argument.

UPDATE: Josh Blackman argues that the distribution of previously issued opinions suggests that Justice Samuel Alito will be writing the Court’s opinion in Koontz. If this is true, it’s good news for the property owner. Alito is one of the two most pro-property rights justices, along with Clarence Thomas. Obviously, we can’t know for sure that Alito will be writing the opinion. Maybe he just ended up with a smaller-than-usual number of opinions from that sitting for idiosyncratic reasons. And even if he is, it could just indicate that the government won a lopsided 8-1 or 9-0 victory. But given the course of the oral argument (where Alito was skeptical of the government’s position) and the fact that the ruling has taken so long to release, the latter scenario seems unlikely.