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Is This Case about Land Use – or Reproductive Rights?

Every so often you can read a U.S. Supreme Court case that makes perfect sense – until it doesn’t.  At that point you realize that there is an extensive subtext to the case that explains the divergent positions of the Majority and the Dissent.

A recent example is the case of Knick v. Township of Scott, which is nominally about land use and takings law, and which overruled a very poor precedent that the Court had established in 1985.  This isn’t the first time this has happened in recent years, as the Court does not have a very distinguished record in dealing with the “Takings” clause of the Constitution: the part of the Fifth Amendment that says that property cannot be taken by the Government without the payment of just compensation. 

Eminent domain cases premised upon that clause are relatively straightforward.  The complicated cases have always been the regulatory takings – the question is when does a regulation “go too far” and become a taking of property that requires compensation. 

It’s a squirrelly doctrine, and the Supreme Court has sometimes got it wrong.  For example, in the 1980 case of Agins v. Tiburon, the Court held that a taking occurs when a regulation or other government action does not have a proper governmental purpose.  But the Court itself acknowledged in 2005, when it overruled Agins in Lingle v. Chevron, that it had applied the wrong test.  Lingle clarified that the existence of a proper governmental purpose is a prerequisite for the validity of any government action, and a valid government action may or may not require compensation as a taking of property.

In the Knick case, the Court overruled another of its earlier misadventures: a poorly thought-out doctrine that had been established in the Williamson County case in 1985.  In that case the Court said that before property owners could have access to federal courts to  protest that a regulation violated the U.S. Constitution, they had first to go to state court to see if they could get compensation.  Violations of other Constitutional rights (like racial discrimination, wrongful search or seizure or excessive use of force by police, etc.) can be redressed in federal court without this requirement, but the Court imposed the rule ex cathedra only for takings cases.

The Williamson County holding was criticized by commentators and lower courts from the outset, and in the Knick case, the Court finally laid it to rest in an opinion written by Chief Justice Roberts and joined in by his four conservative colleagues.

What’s fascinating about the case, though, is the very strong dissent authored by Justice Kagan and joined in by her liberal colleagues: Justices Ginsburg, Sotomayor and Breyer.  She begins with an impassioned defense of the Williamson County holding, saying (wrongly, in this author’s opinion) that it “was rooted in an understanding of the  Fifth Amendment’s Takings Clause stretching back to the late 1800s.”

She goes on and on in her misguided defense of the overruled precedent.  It’s not obvious why, until you come to the second part of her opinion, which essentially argues that even if Williamson County was wrong, under the principle of stare decisis, it should not now be overruled.  Stare decisis is the doctrine that promotes the values of having a settled body of law, and not lightly overruling prior precedents, even if a later court thinks they are incorrect.  To be fair to the Majority, they also considered this issue.  Roberts explained that the Williamson County rule had been proven to be unworkable in practice, and that no one, not landowners nor government regulators, had relied on its existence to guide their behavior.  Accordingly, it was deemed appropriate simply to overrule it, rather than perpetuate an incorrect doctrine by giving it the protection of stare decisis.

So why are the four dissenters so enamored of stare decisis in this case?  A cynical reader might easily conclude that their dissent is really a cri de coeur to protect Roe v. Wade.  Hence the title of this article: to the dissenters the issue seems to be whether the new conservative majority is going to conclude that Roe v. Wade was wrongly decided – and if they do, the liberals on the Court will argue fiercely in favor of nonetheless leaving it on the books.  They will undoubtedly point out that unlike Williamson County, in the reproductive rights area people and governments have long relied upon the rights given by Roe v. Wade to guide their behavior, and that they still should be able to even if a new Court Majority has misgivings about its legal underpinnings.

So, while this case on the surface is about correcting the Supreme Court law of Takings, its subtext anticipates another looming Constitutional confrontation entirely.  We will probably see more such cases before the Court decides to tackle Roe v. Wade itself (if it ever does).