248
Scalia, J., dissenting
the Court does not defend the State's action on the ground that the money taken is worthless, but instead on the ground that the interest would not have been created but for IOLTA's mandatory pooling arrangements. The Court thereby embraces precisely the line of argument we rejected in Phillips: that the interest earned on client funds in IOLTA accounts could not be deemed "private property" of the clients because those funds "cannot reasonably be expected to generate interest income on their own." 524 U. S., at 169 (internal quotation marks omitted); cf. id., at 183 (Breyer, J., dissenting).
B
The Court's rival theory for explaining why just compensation is zero fares no better. Contrary to its aforementioned description of petitioners' "net loss" as the amount their funds would have earned in non-IOLTA accounts, ante, at 239-240, the Court declares that just compensation is "the net value of the interest that was actually earned by petitioners," ante, at 239, n. 10 (emphasis added)—net value consisting of the value of the funds, less "transaction and administrative costs and bank fees" that would be expended in extracting the funds from the IOLTA accounts, ibid. To support this concept of "net value," the Court cites nothing but the cases discussed earlier in its opinion, ante, at 235- 237, which establish that just compensation consists of the value the owner has lost rather than the value the government has gained. In this case, however, there is no difference between the two. Petitioners have lost the interest that Phillips says rightfully belongs to them—which is precisely what the government has gained. The Court's apparent fear that following the Constitution in this case will provide petitioners a "windfall" in the amount of transaction costs saved is based on the unfounded assumption that the State must return the interest directly to petitioners. The State could satisfy its obligation to pay just compensation by simply returning petitioners' money to the IOLTA account
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