The Supreme Court heard oral argument on Wednesday in Horne v. Department of Agriculture, which asks (1) whether the government’s “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property,” Arkansas Game & Fish Comm’n v. United States, applies only to real property and not to personal property; (2) whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government’s discretion; and (3) whether a governmental mandate to relinquish specific, identifiable property as a “condition” on permission to engage in commerce effects a per se taking.
I predict that the Court will split in a 5-4 decision along ideological lines with the key vote being–no surprise–Justice Kennedy.
As Figure 1 indicates, the total question count favors the Petitioner (Horne), who received 16 fewer questions than Respondent (SG). However, that number is somewhat deceptive because Justice Scalia alone was effectively responsible for the disparity in questions. Justice Scalia asked the SG 27 questions, an unusually high number of questions and 23 more than he asked the Petitioner.
The question count by individual Justice suggests an ideological split. Five Justices asked the Petitioner more questions, which suggests a leaning to the Respondent (SG): Kennedy (+1), Ginsburg (+6), Breyer (+5), Sotomayor (+10), and Kagan (+2). But notice that Justice Kennedy asked the Petitioner only one more question than he asked the SG–that’s a virtual tie, given that one of Kennedy’s question to Petitioner was asked during rebuttal simply to have the Petitioner finish his remaining points.
Three Justices asked the SG more questions, which suggests a leaning to the Petitioner: Roberts (+11), Scalia (+23), and Alito (+6).
So how will Justice Kennedy vote? It’s a toss-up, but I will go with a win for the Petitioner with a 5-Justice conservative majority.