Argument

Devillier v. Texas - AI Analysis of Oral Argument

We had Dodonai analyze a transcript of oral arguments in Devillier v. Texas on 1/16/24 with a focus on the issues that each individual justice indicated interest in, their sentiment towards those issues, and their sentiment towards the positions taken by the parties. See the results below.
Dodonai Staff
12 mins

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ROBERTS

1. The Justice takes interest in the following issues:
  - The interpretation of the Fifth Amendment's Takings Clause and its application to the states through the Fourteenth Amendment.
  - The distinction between a substantive right and a cause of action.
  - The procedural aspects of the case, including the removal of the case to federal court and the potential for a state to cease a taking after the fact.
  - The role of the state and federal courts in enforcing the Takings Clause.

2. Summary of the Justice's questions and the attorneys' responses:
  - To Mr. McNamara (for the petitioners), the Justice asked about the potential for a state to cease a taking after it has been determined to be a taking and the state has been ordered to pay compensation. Mr. McNamara responded that a state could cease a taking, but that would create an uncompensated temporary taking.
  - To Mr. Nielson (for the respondent), the Justice asked about the interpretation of previous Supreme Court cases that stated the Constitution provides a basis for a court to award money damages against the government. Mr. Nielson argued that these cases were about the substantive right, not a cause of action.
  - To Mr. Kneedler (for the United States, as amicus curiae), the Justice asked about the government's argument in First English that the Constitution does not of its own force furnish a basis for a court to award money damages against the government. Mr. Kneedler argued that the Constitution speaks in terms of compensation in defining the right, not in providing a cause of action.

3. Analysis of the Justice's sentiment towards each issue:
  - The Justice seems to lean towards the interpretation that the Constitution does provide a basis for a court to award money damages against the government, as indicated by his questions to Mr. Nielson and Mr. Kneedler.
  - The Justice appears to be interested in the procedural aspects of the case, particularly the potential for a state to cease a taking after the fact, as indicated by his questions to Mr. McNamara.

4. Analysis of the Justice's sentiment towards each party's position:
  - The Justice seems to be skeptical of the respondent's and the United States' arguments that the Constitution does not provide a cause of action for takings claims against the state.
  - The Justice appears to be more sympathetic to the petitioners' argument that the Fifth Amendment's Takings Clause provides a right of action for takings claims against the state.  

THOMAS

1. The Justice takes interest in the following issues:
  - The historical context of the 19th Century federal courts and their enforcement of property rights.
  - The distinction between jurisdiction and cause of action.
  - The application of the Fifth Amendment through the Fourteenth Amendment.
  - The concept of just compensation as a remedy.
  - The potential for a claim under the Texas Constitution and federal due process claims.

2. Summary of the Justice's questions and the attorneys' responses:
  - To Mr. McNamara, the Justice questions the contradiction between the historical context and the current argument. Mr. McNamara responds by distinguishing between jurisdiction and cause of action, and emphasizes that the Fifth Amendment mandates compensation.
  - To Mr. Nielson, the Justice asks about the potential cause of action and whether the petitioners' constitutional right can be vindicated in Texas courts. Mr. Nielson points to the Texas Supreme Court's decision in City of Baytown and suggests that the petitioners could amend their complaint to bring a claim under Texas common law.

3. Analysis of the Justice's sentiment towards each issue:
  - The Justice seems skeptical about the historical context argument, questioning its relevance to the current case.
  - The Justice appears to be interested in the distinction between jurisdiction and cause of action, but does not express a clear sentiment.
  - The Justice seems to be open to the idea of just compensation as a remedy, but does not express a clear sentiment.
  - The Justice appears to be interested in the potential for a claim under the Texas Constitution and federal due process claims, but does not express a clear sentiment.

4. Analysis of the Justice's sentiment towards each party's position:
  - The Justice seems to challenge Mr. McNamara's argument, questioning the contradiction between the historical context and the current argument.
  - The Justice appears to be open to Mr. Nielson's argument, asking about the potential cause of action and whether the petitioners' constitutional right can be vindicated in Texas courts.  

BARRETT

1. The Justice takes interest in the following issues:
  - The historical context and interpretation of the Fifth Amendment and its application to the states through the Fourteenth Amendment.
  - The distinction between jurisdiction and a cause of action.
  - The concept of a cause of action in 1791 versus the modern conception.
  - The role of the Fourteenth Amendment in enforcing the entitlement to relief.
  - The procedural aspects of the case, particularly the availability of a state cause of action.
  - The potential implications of the case on state courts across the nation.
  - The hypothetical scenario of a state refusing to provide any form of remedy for a taking.

2. Summary of the Justice's questions and the attorneys' responses:
  - To Mr. McNamara, the Justice questioned the historical interpretation of the Fifth Amendment and the concept of a cause of action. Mr. McNamara argued that the modern conception of a cause of action is different from the 1791 understanding, and that the right to just compensation was enforceable at the time of framing.
  - The Justice asked Mr. Nielson about a hypothetical scenario where a state refuses to provide any form of remedy for a taking. Mr. Nielson suggested that in such a scenario, the property owner could seek an injunction or ask Congress to enforce the right through legislation.
  - The Justice asked Mr. Kneedler about the potential remedy in the hypothetical scenario. Mr. Kneedler confirmed that the property owner could get an injunction to get their property back, but may not get reimbursed for the temporary taking.

3. Analysis of the Justice's sentiment towards each issue:
  - The Justice seems skeptical about the historical interpretation of the Fifth Amendment as providing a cause of action.
  - The Justice appears to be concerned about the potential implications of the case on state courts and the availability of remedies for takings.
  - The Justice seems to be exploring the limits of the state's obligations under the Fifth Amendment, particularly in the hypothetical scenario of a state refusing to provide any form of remedy.

4. Analysis of the Justice's sentiment towards each party's position:
  - The Justice seems to challenge Mr. McNamara's argument about the historical interpretation of the Fifth Amendment, but also appears to be sympathetic to the potential implications of the case on state courts.
  - The Justice seems skeptical about Mr. Nielson's suggestion that the property owner could seek an injunction or ask Congress to enforce the right.
  - The Justice appears to be probing Mr. Kneedler's position on the potential remedy in the hypothetical scenario, particularly the lack of reimbursement for the temporary taking.  

GORSUCH

1. The Justice takes interest in the following issues:
  - The interpretation of the Fifth Amendment's Takings Clause and its application to the states through the Fourteenth Amendment.
  - The existence of an independent cause of action under the Fifth Amendment.
  - The nature of the remedy or compensation for takings claims.
  - The role of state common law in vindicating the Fifth Amendment.
  - The question of sovereign immunity and the statute of limitations in relation to the Fifth Amendment.
  - The potential for states to withdraw compensation schemes.

2. Summary of the Justice's questions and the attorneys' responses:
  - To Mr. McNamara, the Justice questioned the existence of an independent cause of action under the Fifth Amendment and the nature of the remedy. Mr. McNamara argued that the Fifth Amendment does provide a cause of action and an entitlement to just compensation as a remedy. The Justice also questioned the role of state common law, to which Mr. McNamara conceded that a state common law action could vindicate the Fifth Amendment.
  - To Mr. Nielson, the Justice questioned the potential for states to withdraw compensation schemes. Mr. Nielson argued that Texas provides compensation and that the state has a constitutional right to do so. The Justice also asked about the existing state constitutional and common law causes of action, which Mr. Nielson confirmed exist but were not pled in this case.
  - To Mr. Kneedler, the Justice asked about the potential for states to act as "rogue states" and withdraw compensation schemes. Mr. Kneedler argued that this is a fundamental aspect of the Constitution and that injunctive action could be taken if necessary.

3. Analysis of the Justice's sentiment towards each issue:
  - The Justice seems skeptical about the existence of an independent cause of action under the Fifth Amendment, suggesting that the remedy might be found in state common law.
  - The Justice appears concerned about the potential for states to withdraw compensation schemes, suggesting that this could create an incentive for governments to exploit a loophole in the law.

4. Analysis of the Justice's sentiment towards each party's position:
  - The Justice appears skeptical of Mr. McNamara's argument that the Fifth Amendment provides an independent cause of action and an entitlement to just compensation.
  - The Justice seems to agree with Mr. Nielson's argument that Texas provides compensation and has a constitutional right to do so, but questions why the existing state constitutional and common law causes of action were not pled in this case.
  - The Justice appears to agree with Mr. Kneedler's argument that the potential for states to act as "rogue states" is a fundamental aspect of the Constitution, but questions whether the existing state constitutional cause of action is still available to the plaintiffs.  

SOTOMAYOR

1. The Justice takes interest in the following issues:
  - The application of the Fifth Amendment's Takings Clause to the states through the Fourteenth Amendment.
  - The scope of the takings law that governs the question.
  - The difference between the case at hand and the First English case.
  - The process of pleading a Fifth Amendment claim in the Texas court.
  - The possibility of an injunction to pay money due to the Appropriations Clause.

2. Summary of the Justice's questions and the attorneys' responses:
  - To Mr. McNamara, the Justice asked about the status of the case in the federal court and the state law claim. Mr. McNamara confirmed that the case was dismissed in federal court and there is a pending suit on the state law claim. He also mentioned a dispute about the scope of the takings law.
  - To Mr. Nielson, the Justice asked how the petitioners would plead their Fifth Amendment claim in the Texas court if the court below is affirmed. Mr. Nielson suggested that they would bring their claim under state law.
  - To Mr. Kneedler, the Justice asked about the difference between Texas's position and the government's position. Mr. Kneedler mentioned a disagreement about the possibility of an injunction to pay money due to the Appropriations Clause.

3. Analysis of the Justice's sentiment towards each issue:
  - The Justice seems to be skeptical about the application of the Fifth Amendment's Takings Clause to the states through the Fourteenth Amendment.
  - The Justice appears to be interested in understanding the scope of the takings law that governs the question.
  - The Justice seems to be trying to draw parallels between the case at hand and the First English case.
  - The Justice appears to be critical of the process of pleading a Fifth Amendment claim in the Texas court.
  - The Justice seems to be questioning the possibility of an injunction to pay money due to the Appropriations Clause.

4. Analysis of the Justice's sentiment towards each party's position:
  - The Justice seems to be skeptical of Mr. McNamara's position, particularly regarding the scope of the takings law.
  - The Justice appears to be critical of Mr. Nielson's position, particularly regarding the process of pleading a Fifth Amendment claim in the Texas court.
  - The Justice seems to be questioning Mr. Kneedler's position, particularly regarding the possibility of an injunction to pay money due to the Appropriations Clause.  

JACKSON

1. The Justice takes interest in the following issues:
  - The distinction between remedy, right, and cause of action.
  - The interpretation of the Fifth Amendment in terms of providing the right and the remedy.
  - The forum for the cause of action.
  - The possibility of a declaratory judgment.
  - The interpretation of the compensation clause in the Fifth Amendment.
  - The possibility of a cause of action under state law for a temporary taking.

2. Summary of the Justice's questions and the attorneys' responses:
  - The Justice asked Mr. McNamara if there are three separate concepts: remedy, right, and cause of action. McNamara responded that they are not distinct concepts and that a cause of action is an entitlement to a particular remedy.
  - The Justice asked if the Fifth Amendment provides the right and the remedy but not the enforcement mechanism. McNamara disagreed, arguing that the Fifth Amendment does provide some judicial remedies.
  - The Justice asked Mr. Nielson about the possibility of a declaratory judgment. Nielson responded that a declaratory judgment action would fall within the universe of Ex parte Young type remedies.
  - The Justice asked Mr. Kneedler about the interpretation of the compensation clause in the Fifth Amendment. Kneedler responded that the entire Fifth Amendment is prohibitory, and the compensation clause is conditional.

3. Analysis of the Justice's sentiment towards each issue:
  - The Justice seems to be trying to clarify the distinction between remedy, right, and cause of action, suggesting that they might be separate concepts.
  - The Justice appears to be open to the idea that the Fifth Amendment provides the right and the remedy but not necessarily the enforcement mechanism.
  - The Justice seems to be interested in the possibility of a declaratory judgment as a potential remedy.
  - The Justice appears to agree with Kneedler's interpretation of the compensation clause as conditional.

4. Analysis of the Justice's sentiment towards each party's position:
  - The Justice seems to be skeptical of McNamara's argument that the Fifth Amendment provides a cause of action, asking probing questions to clarify his position.
  - The Justice appears to be more receptive to Nielson's and Kneedler's arguments, asking questions that seem to align with their positions.  

ALITO

1. The Justice takes interest in the following issues:
  - The interpretation of the Takings Clause and the Due Process Clause in the Fifth Amendment.
  - The distinction between seeking damages and seeking just compensation.
  - The qualifications for a right to sue for just compensation under the Fifth Amendment.
  - The role of Congress in creating lower federal courts and giving them jurisdiction to entertain such claims.
  - The difference between damages and the value of a temporary taking.
  - The interpretation of the Tucker Act in relation to the Takings Clause.

2. Summary of the Justice's questions and the attorneys' responses:
  - The Justice asked Mr. McNamara why the Takings Clause and the Due Process Clause should be read differently regarding the creation of a cause of action. McNamara responded that they don't have to be read differently and explained their position on seeking just compensation, not damages.
  - The Justice asked Mr. McNamara about the qualifications for a right to sue for just compensation under the Fifth Amendment. McNamara responded that it requires a court of competent jurisdiction and that Congress and Texas can channel jurisdiction as they please.
  - The Justice asked Mr. McNamara about the value of a temporary taking. McNamara explained that it would be the fair market value of that temporary easement.
  - The Justice asked Mr. Kneedler about the cause of action in a Tucker Act suit. Kneedler responded that it's the combination of the Tucker Act and the Fifth Amendment that provides a cause of action.

3. Analysis of the Justice's sentiment towards each issue:
  - The Justice seems to be seeking clarity on the interpretation of the Takings Clause and the Due Process Clause, suggesting that he sees them as similar in language and possibly in application.
  - The Justice appears to be skeptical about the distinction between seeking damages and seeking just compensation, probing for a clear explanation of the difference.
  - The Justice seems to question the strength of a right that is dependent on Congress's discretionary choice to create lower federal courts and give them jurisdiction to entertain such claims.
  - The Justice appears to be doubtful about the interpretation of the Tucker Act in relation to the Takings Clause, suggesting that he finds the argument that the combination of the two provides a cause of action to be confusing.

4. Analysis of the Justice's sentiment towards each party's position:
  - The Justice seems to be challenging Mr. McNamara's position, particularly on the distinction between seeking damages and seeking just compensation, and the qualifications for a right to sue for just compensation under the Fifth Amendment.
  - The Justice appears to be skeptical about Mr. Kneedler's argument that the combination of the Tucker Act and the Fifth Amendment provides a cause of action, suggesting that he finds this argument to be unclear or unconvincing.  

KAGAN

1. The Justice takes interest in the following issues:
  - The ongoing nature of a constitutional violation when a state takes a person's property without compensation.
  - The role of courts in addressing such constitutional violations.
  - The distinction between a right to compensation and a right to a remedy.
  - The ability of a person to sue a state for violating their constitutional rights.
  - The historical context of the Takings Clause and its application.

2. Summary of the Justice's questions and the attorney's responses:
  - Justice Kagan asked Mr. Nielson if he agreed that a state taking a person's property without compensation is an ongoing violation of the Constitution. Mr. Nielson agreed that it is a violation, but noted that the Court's cases have not addressed it as such.
  - Justice Kagan then asked if courts are supposed to do something about such violations. Mr. Nielson agreed, but pointed out that without a cause of action, there are no remedies.
  - Justice Kagan further questioned the distinction between a right to compensation and a right to a remedy, suggesting that the state is violating the right to be paid. Mr. Nielson agreed, but reiterated that without a cause of action, there is no recourse.
  - Justice Kagan also asked if a person could sue a state for violating their First Amendment rights. Mr. Nielson confirmed that they could, for injunctive relief.

3. Analysis of the Justice's sentiment towards each issue:
  - Justice Kagan appears to be sympathetic to the idea that a state taking a person's property without compensation is an ongoing violation of the Constitution.
  - She seems to believe that courts should intervene in such cases.
  - She appears to challenge the distinction between a right to compensation and a right to a remedy, suggesting that the state is violating the right to be paid.
  - She seems to believe that a person should be able to sue a state for violating their constitutional rights.

4. Analysis of the Justice's sentiment towards each party's position:
  - Justice Kagan appears to be skeptical of Mr. Nielson's argument that without a cause of action, there are no remedies for a state taking a person's property without compensation.
  - She seems to be more sympathetic to Mr. McNamara's position that the state is violating the right to be paid, and that courts should intervene in such cases.  

KAVANAUGH

1. The Justice takes interest in the following issues:
  - The application of the Takings Clause of the Fifth Amendment to the states through the Fourteenth Amendment.
  - The concept of an injunction to pay money as a form of compensation for property damage.
  - The availability of forums for compensation in Texas.

2. Summary of the Justice's questions and the attorney's responses:
  - Justice Kavanaugh first questions Mr. Nielson about the application of the Takings Clause to the states. Mr. Nielson responds that he does not know how this principle is derived, but that Texas does not dispute it.
  - Justice Kavanaugh then asks about Justice Gorsuch's hypothetical scenario of an injunction to pay money. Mr. Nielson confirms that he believes this question does not need to be answered in this case because Texas provides forums for compensation. He also expresses uncertainty about the concept of an injunction to pay money.
  - Justice Kavanaugh further probes the theoretical possibility of an injunction to pay money, to which Mr. Nielson confirms that it is not present in this case. He reiterates that Texas does pay money, but he is unsure about the conceptual basis of an injunction to pay money.

3. Analysis of the Justice's sentiment towards each issue:
  - The Justice seems to be skeptical about the application of the Takings Clause to the states, as he questions Mr. Nielson about it and does not seem satisfied with the response.
  - The Justice also appears to be interested in the concept of an injunction to pay money, as he repeatedly questions Mr. Nielson about it. However, he seems to accept Mr. Nielson's assertion that this concept is not relevant to the case at hand.

4. Analysis of the Justice's sentiment towards each party's position:
  - The Justice seems to be somewhat skeptical of the state's position, as he questions Mr. Nielson about the application of the Takings Clause to the states and the concept of an injunction to pay money.
  - However, the Justice does not express any clear sentiment towards the petitioners' position in this excerpt.

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