Brandt's effort has caught the eye of property rights and libertarian groups, such as the Cato Institute. A victory could make it much easier for landowners to win in court, putting the government on the hook for potentially millions of dollars.
That may explain why the Obama administration took the unusual step of asking the Supreme Court to review the case, even though it defeated Brandt in lower court. It's looking for a Supreme Court precedent to head off the takings claims.
And Forbes gets into the weeds of the Sotomayor dissent (and some SCOTUS infighting too).
And another good analysis by Harvard Law Professor Noah Feldman
Why, then, did eight justices vote against bike paths, not to mention the government? The reason is the value of historical continuity. The court was telling the government, "you can't play fast and loose with us - you just said the right-of-way was an easement!" In reality, of course, it was the Roosevelt administration that said it 72 years ago to nine long-gone justices. But pretending that the court is a continuous "we," and that the Obama administration is the same executive as FDR's, emphasizes the continuous nature of political authority.
One of the most important fictions of the common law was that the king had two bodies, a "body natural" that dies like everybody else and a "body politic" that is immortal and contains the powers of government which never die. To us, the fiction of our own immortal, collective body politic may seem like nonsense on stilts. But on what other ground, really, are "we the people" the same ones who made our Constitution? Nostalgia makes us feel warm and cozy, but historical continuity is more than just an hour of the Antiques Roadshow: It's a foundation of political faith that we aren't completely ready to jettison.
Our legal team is taking a closer look at the decision—and its implications for other rail-trails—to determine next steps. This decision is likely to result in more litigation over rail-trails in federally granted rights of way. Those rail-trails that have been built on railbanked corridors or fee simple land purchases will remain safe. Railbanked corridors are preserved for future rail use by being converted to a trail in the interim