Do judges "make law?"

That issue was at the forefront in the recent confirmation hearings for Justice Sonia Sotomayor. While asked the question -- she -- like SCOTUS nominees before her, politely sidestepped the question.

In Stop the Beach Renourishment, Inc. v. Florida De['t of Environmental Protection, No. 08-1151 (cert. granted June 15, 2009), the U.S. Supreme Court will be facing that question squarely. The case asks whether courts are capable of taking property when they make law and change long-standing rules, or ignore their own precedents.

The Florida Supreme Court held that a state statute which prohibits "beach renourishment" without a permit did not effect a taking of littoral (beachfront) property, even though it altered the long-standing rights of the owners to accretion on their land and direct access to the ocean. The U.S. Supreme Court is considering whether the Florida court's reversal of more than 100 years of Florida law was a judicial taking, and whether the Florida court's decision violated due process.

The amicus brief of Owners' Counsel, a nationwide association of the most experienced eminent domain and property lawyers, addresses three issues.

First, the notion of "property" embodies core components transcending a state court's power to redefine. The rule of accretion, which insures that littoral parcels remain so, is one of those fundamental components.

Second, the remedy for a judicial taking is invalidation of the state court judgment.

Third, the brief summarizes several of the more notable instances where state courts have openly and notoriously rewritten established rules of property. This was accomplished under the guise of "correcting" errors in long-standing common law doctrines, reinterpreting terms to alter their commonly understood meanings, or "discovering" that private property is (and has been all along) subject to a public trust.