Kagan Sounds New Alarm as Supreme Court Scraps Another Precedent

“Under cover of overruling 'only' a single decision, today's opinion smashes a hundred-plus years of legal rulings to smithereens," Kagan wrote in her dissent. Chief Justice Roberts accused the dissent of making "extreme assertions."

June 21, 2019 at 11:53 AM

5 minute read

By Tony Mauro

The original version of this story was published on National Law Journal

Ruling in an important takings case, the U.S. Supreme Court on Friday overturned a long-standing precedent and said plaintiffs can go directly to federal court to vindicate their Fifth Amendment right to “just compensation” when the government takes their property.

The 5-4 decision in Knick v. Township of Scott represents the second time the court this term has overturned a significant precedent, and Justice Elena Kagan, who authored a dissent in the case, said the majority's decision “transgresses all usual principles of stare decisis,” the principle of standing by precedents.

Kagan added, “Under cover of overruling 'only' a single decision, today's opinion smashes a hundred-plus years of legal rulings to smithereens.” She also wrote, “Its consequence is to channel a mass of quintessentially local cases involving complex state-law issues into federal courts.”

Kagan also wrote, “The majority's overruling of Williamson County will have two damaging consequences. It will inevitably turn even well-meaning government officials into lawbreakers. And it will subvert important principles of judicial federalism.”

Liberal justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor joined Kagan's 19-page dissent. The case was first argued in early October, before Justice Brett Kavanaugh joined the court, but was reargued in January, likely to overcome a 4-4 tie. Kavanaugh sided with the majority.

The decision overruled Williamson County Regional Planning Commission v. Hamilton Bank, a 1985 decision that found that a takings claim is not “ripe” for federal court if the property owner has not exhausted compensation remedies in state courts.

Chief Justice John Roberts Jr., writing for the majority, said that rule has been proven inefficient and has the effect of foreclosing litigation in federal court altogether.

Roberts wrote, “A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it,” and should be able to file a civil rights Section 1983 claim in federal court at that time.

Responding to Kagan's dissent, Roberts wrote, “The dissent cannot, with respect, fairly maintain its extreme assertions regarding our application of the principle of stare decisis.”

“Williamson County was not just wrong. Its reasoning was exceptionally ill founded and conflicted with much of … our takings jurisprudence,” Roberts added.

Roberts said the Williamson County “decision has come in for repeated criticism over the years from Justices of this Court and many respected commentators.” He pointed to rulings written by, among others, the late Chief Justice William Rehnquist and Justice Clarence Thomas.

“Governments need not fear that our holding will lead federal courts to invalidate their regulations as unconstitutional. As long as just compensation remedies are available—as they have been for nearly 150 years—injunctive relief will be foreclosed,” Roberts wrote.

Rose May Knick's home in Lackawanna County, Pennsylvania, allegedly was situated on an ancestral burial ground and was deemed public property by the local municipality. She brought the case to the Supreme Court, claiming that a Scott Township ordinance requiring owners of private property with cemeteries on-site to open their grounds to the public violates the Constitution by taking private property without compensation, violating the Fifth Amendment.

Pacific Legal Foundation lawyer David Breemer, who represented Knick, said Friday, “This decision is a very long time coming for Rose and other property owners who have had federal courtroom doors slammed shut in their faces whenever they seek compensation for a governmental taking of their private property. The court's decision sends a message that constitutionally-based property rights deserve federal protection just like other rights.”

In the first decision overruling a precedent in Franchise Tax Board of California v. Hyatt last month, Justice Stephen Breyer stated, “Today's decision can only cause one to wonder which cases the Court will overrule next.”

Kagan, in her dissent Friday, cited Breyer's comment and said, “Well, that didn't take long. Now one may wonder yet again.”