The U.S. Supreme Court building in Washington, D.C. July 22, 2019.

Sen. Sheldon Whitehouse doesn't like the Supreme Court's Knick v. Township of Scott decision. (See "Why the 'Knick' Ruling Signals a New Day," NLJ August 2019.) Why? And why should we care about a five-month-old Supreme Court decision? Answer: because he misunderstands what the court did and denigrates the decision as a plot by a cabal of right-wing jurists (he calls them "the Roberts Five"). He could not be more wrong.

All Knick did was cut through a Gordian knot that had barred Americans suffering regulatory takings of their property from receiving judicial redress mandated by the Constitution. Knick overruled the bizarre 1985 Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City holding that forbade American property owners—and them alone—from suing in federal court to enforce a federal constitutional guarantee. Before Knick, their supposed "remedy" was to sue "first" in state court under state law, but with a bizarre twist: any state court decision would bar them from ever having their federal constitutional claim adjudicated in federal court. Knick confessed that, in so holding, the Supreme Court had "simply" been "confused" when it decided Williamson County, which the court rightly called "exceptionally ill-founded … and unworkable in practice."

Set aside the dark political suspicions voiced by Whitehouse, and examine what actually happened in Knick and other Supreme Court decisions in the last decade that favored property rights issues. Importantly, those decisions were joined by most (and sometimes all) of the liberal justices.

Knick placed property owners with constitutional claims on a par with other citizens with constitutional claims. Knick simply reinvigorated the settled rule that all constitutional claimants may take their cases directly to federal court. The supposedly greater knowledge of local conditions touted in Sen. Whitehouse's article plays no part in any other context.

Fourth Amendment search and seizure cases, for example, often depend on local practices upon which local judges could be said to have superior knowledge. However, the victims are not required to sue only in state court. The same is true of "adult" entertainment cases that turn on local land use laws. First Amendment cases dealing with the establishment of religion are also litigated in federal courts, even though they all involve intensely local issues. Freedom of speech cases defer to local conditions, but do not require state courts to adjudicate the federal constitutional issues. Moreover, under "diversity" jurisdiction, the parties are entitled to try even purely state law issues in federal court if the plaintiff and defendant are citizens of different states and one of them desires a federal forum. And under "removal" jurisdiction, if a plaintiff files a state court case that contains a federal issue, the defendant is authorized to remove that case to federal court. That happened, for example, in the Chicago surgeons case, City of Chicago v. International College of Surgeons, where the defendant city of Chicago preferred to have the case tried in federal court, rather than the presumptively more knowledgeable state courts. Similarly, City of Monterey v. Del Monte Dunes at Monterey was tried in federal court because (at that time) California did not recognize any monetary remedy for a regulatory taking. The property owner won and that victory was affirmed by both the Ninth Circuit and the Supreme Court.

Thus, far from "smash[ing] a hundred-plus years of legal rulings to smithereens," all that Knick did was realign taking cases with other cases of constitutional rights violation.

Nor is it just the Republican appointees who ruled in favor of property owners in cases leading up to Knick. In decisions during the last decade, the Supreme Court issued opinions that were either 8-1 or 9-0 against the government. For example, Arkansas Game and Fish Commission v. United States, a unanimous opinion by Justice Ruth Bader Ginsburg held that government flooding of property required compensation. Beyond that, the opinion scoffed at the governmental defense, i.e., that liability would "impede the government's ability to act in the public interest." Justice Ginsburg replied: "Time and again in Takings Clause cases," the government made this argument. However, when the argument was rejected in the past, "the sky did not fall." In Brandt Revocable Trust v. United States, the government claimed title to land underlying a railroad easement. By a vote of 8-1, the Supreme Court said it would have to pay if it wanted the land. And then there was Horne v. Department of Agriculture, a rare case that resulted in two different Supreme Court opinions, first on procedure and then on substance. The court unanimously remanded the case to the Ninth Circuit for procedural incorrectness. When the case came back on the substantive issue of whether requiring the property owners to turn over a massive portion of their raisin crop to the government with no compensation, all justices agreed that an unconstitutional taking had occurred. Three of the liberals only disagreed on how to value the property.

So, does Knick signal the start of something new? You bet it does. Is that a good thing? It certainly is. It allows all constitutional claimants to battle on an even playing field—something basic in the American character. Rather than speculate on what Knick might mean in future litigation involving government agencies, we might all do well to invoke the verity inscribed on the U.S. Department of Justice building: "The United States wins its case whenever justice is done one of its citizens in the courts." Justice, and elimination of a contrived, bizarre obstacle in the path of constitutionally aggrieved Americans seeking relief explicitly promised by the Fifth Amendment, is all that Knick requires. And that's a very good thing—for all Americans.

Gideon Kanner is a professor emeritus at Loyola Law School in Los Angeles. Michael M. Berger is a partner in the national law firm Manatt, Phelps & Phillips, co-leading the firm's appellate practice. The authors have argued five constitutional takings cases in the U.S. Supreme Court and filed an amicus curiae brief supporting the property owner in Knick.