Item B: Ordinance Concerning Goal 5 Natural Resources Study

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2918 112 SUPREME COURT REPORTER 505 U.S. 1062 ry in fact even if the state statute was uncon- stitutional when he filed this lawsuit. It is true, as the Court notes, that the argument against deciding the constitutional issue in this case rests on prudentialconsid- erations rather than a want of jurisdiction. I think it equally clear, however, that a Court less eager to decide the merits would follow the wise counsel of Justice Brandeis in his deservedly famous concurring opinion in Ashwander v. TVA, 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688 (1936). As he explained, the Court has developed "for its own governance - in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision." ld., at 346, 56 S.Ct., at 482. The second of those rules applies directly to this case. "2. The Court will not 'anticipate a ques- tion of constitutional law in advance of the necessity of deciding it.' Liverpoo4 N.Y. & P.S.S. Co. v. Emigration Commission- ers, 113 U.s. 33, 39 [5 S.Ct. 352, 355, 28 L.Ed. 899]; [citing five additional cases]. 'It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.' Burton v. United States, 196 U.S. 283, 295 [25 S.Ct. 243, 245, 49 L.Ed. 482J." ld., at 346-347,56 S.Ct., at 483. Cavalierly dismissing the doctrine of judi- cial restraint, the Court today tersely an- nounces that ''we do not think it prudent to apply that prudential requirement here." Ante, at..J.wt;a2892. I respectfully disagree and would save consideration of the merits for another day. Since, however, the Court has reached the merits, I shall do so as well. II In its analysis of the merits, the Court starts from the premise that this Court has adopted a "categorical rule that total regula- tory takings must be compensated," ante, at 2899, and then sets itself to the task of identifying the exceptional cases in which a State may be relieved of this categorical obligation, ante, at 2899-2900. The test the Court announces is that the regulation must do no more than duplicate the result that could have been achieved under a State's nuisance law. Ante, at 2900. Under this test the categorical rule will apply unless the regulation merely makes explicit what was otherwise an implicit limitation on the own- er's property rights. In my opinion, the Court is doubly in error. The categorical rule the Court estab- lishes is an unsound and unwise, addition to the law and the Court's formulation of the exception to that rule is too rigid and too narrow. The Categorical Rule As the Court- recognizes, ante, at 2892- 2893, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), provides no support for its-or, indeed, any-categorical rule. To the contrary, Jus- tice Holmes recognized that such absolute rules ill fit the inquiry into "regulatory tak- ings." Thus, in the paragraph that contains his famous observation that a regulation may go "too far" and thereby constitute a taking, the Justice wrote: "As we already have said, this is a question of degree-and therefore cannot be disposed of by general proposi- tions." ld., at 416, 43 S.Ct., at 160. What he had "already ... said" made perfectly clear that Justice Holmes regarded economic inju- ry to be merely one factor to be weighed: "One fact for consideration in detennining such limits is the 'extent of the dimin2!!.onl064 [ofvalue.] So the question depends upon the particular facts." ld., at 413,43 s.Ot., at 159. Nor does the Court's new categorical rule find support in decisions following Mahon. Although in dicta we have sometimes recited that a law "effects a taking if [it] ... denies an owner economically viable use of his land," Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980), our rulings have rejected such an