Supreme Court

Clarence Thomas Faults SCOTUS for Enabling Government Abuse and Undermining the 5th Amendment

The Supreme Court refuses to hear an important constitutional case.


Credit: C-SPAN

The Fifth Amendment to the U.S. Constitution requires the government to pay just compensation when it takes private property for public use. Yet in the 1985 case of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, the U.S. Supreme Court significantly undercut the protections from government abuse offered by that constitutional provision, holding that plaintiffs may not file a just compensation lawsuit in federal court until they have first exhausted their compensation claims in state court. The problem with that holding, as Justice Clarence Thomas explained in a dissent filed today, is that "plaintiffs alleging violations of other enumerated constitutional rights ordinarily may do so in federal court without first availing themselves of state court. But the same is not true for a Takings Clause plaintiff." In Thomas' view, the Supreme Court "should consider overturning Williamson County because there is 'no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation.'"

Unfortunately, a majority of Thomas' fellow justices appear to disagree. Today the Supreme Court declined to take up the case of Arrigoni Enterprises, LLC v. Durham, a Takings Clause petition out of Connecticut that asked the Supreme Court to consider striking down Williamson County once and for all. In response to the Court's rejection of that petition, Justice Thomas, joined by Justice Anthony Kennedy, filed a pointed dissent, accusing the Court of undermining a core constitutional provision while simultaneously enabling government abuse of property rights. "Both the text of the Takings Clause and the historical evidence cast doubt on Williamson County," Thomas noted. According to Thomas, Arrigoni Enterprises offered a welcome opportunity "to consider whether there are any justifications for the ahistorical, atextual, and anomalous state-litigation rule, and if not, to overrule Williamson County."

As a result of the Supreme Court's actions today, however, Wiliamson County remains binding precedent.

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  1. I fucking love that guy. Even though he is a race-trading Uncle Tom who isn’t authentically black…

    \ acceptable prog racism

    1. Something cannot be racist if:

      1. It’s directed at a white person.

      2. If the person of color it’s directed at is a republican.


    2. Justice Thomas seems to be doing OK . . . But, Monty: get some help.

  2. The government owns all land, we just rent and their pleasure. Try not paying your rent to them and you’ll see what I mean.

    1. Good point. I’m going to start calling them when my place needs maintenance.

      1. Brilliant. My dad could use their help clearing trees.

    2. +1 Alloidial Title

  3. In Thomas’ view, the Supreme Court “should consider overturning Williamson County because there is ‘no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation.'”

    You see, this is just more evidence of what a terrible jurist Thomas is. It’s like he’s entirely unfamiliar with the FYTW Clause.

    1. It’s because they wrote the one in disappearing, reappearing ink!

    2. Would this case be more appropriately covered by the FYTM, Fuck You That’s Mine, clause?

  4. I will never understand why anyone would suggest a clearly constitutional issue be relegated to the states.

    1. It’s enough that the state offers just and timely compensation for its takings, where “just,” “timely,” and “compensation” are defined by the state itself. What could go wrong?

    2. One of the most important tenets of our “legal” system is that as much money as possible must be paid to scum-bag lawyers before a case can be concluded.
      There are hundreds of thousands of state level lawyers that need to be able to be paid exorbitant amounts of money to take cases through their level of jurisprudence before other, federal ones get theirs.
      Judges remember from whence they came and ensure that lawyers get the most pay for the least production to the economy. It is just the way it is.
      Technically speaking, it is the other cases, where federal suit can be filed, without going through the state levels, are the ones that are in error.

  5. Does the majority file an opinion after denying cert?

    1. They are “usually” just one sentence. But there is no formal requirement on SCOTUS to elaborate or refrain from elaborating upon a granting of cert.

      Serve for life, guaranteed strife.

      1. They are “usually” just one sentence.

        “Fuck off, peasant.”

    2. They can file an opinion – but they don’t have to.

      And probably won’t in this case.

      I mean, what are they going to say? “Yeah, the precedent is screwed up but we’re sticking with it because too many government (and private) agencies have arranged their affairs to take it into account and so the burden on them of reversing ourselves is too high.”

      1. “Look, it’s not the court’s job to challenge the blatantly unconstitutional practices of the other branches. That’s on the voters. We’re just here to rubber stamp the decisions of the assholes you put in office. You really only have yourself to blame.” /Roberts

      2. the burden on them of reversing ourselves is too high

        The idea that the courts must be more concerned with the burdens on the government than with the burdens on the people is galling.

      3. The argument that stare decisis and the reliance thereof should be lifted does not strike me as wise. The reason most cases settle, and thereby most people get some form of speedy justice based upon their negotiating skills, is due in no small part to the reliability of stare decisis and the nature of the lawsuit-prone American public to seek remedy at court and not through authority of force. I feel stare decisis is one of the most libertarian ideas to protect.

        “I know the law as it stands, therefore I am forewarned and forearmed.” Europeans allow judges to enact fiats, all standards are subjective, and thus more politicking in law etc etc.

        I do agree with the contention that BLATANT unconstitutional practices, like the prohibition of alcohol, should be stricken down, but isn’t the counterargument; “If you care so much, go lobby and change the law on the books.” Is the Supreme Court a law writing body or a rules interpreting body? Do they say, “You can’t write it like that” or “You can’t do that”?

        1. The problem is that stare decisis is a procedural doctrine. It says nothing about how to rule properly on a case in the first place. Moreover, the very principle it is meant to uphold–the predictability of the law–can be contradicted by its application to certain cases, such as this one.

          What is predictable about the government capriciously taking your property?

          1. You have bullseyed why life terms are ridiculous. These kings and queens of constitutionality are allowed to enact political dogma through selective application of “bound by stare decisis.” Ginsberg is notorious for finding avenues of “novelty” in order to avoid being bound by a previous decision.

            Paywall, it’s Lexis. Find a way

            We need TERMS so that people can run on platforms of enforce-ability of stare decisis. “I am running for the Supreme Court, and I will NEVER/SOMETIME/ALWAYS be subjected to stare decisis.”

            Vetting, limitation, and connection to the people. I don’t want some 80+ year old crone who believe women in the West are still persecuted making shit up as she fades into senility. And to answer your question, “to know something can occur affords you constructive knowledge of the outcome,” i.e. it is only the one who “failed to predict” the outcome’s fault for believing opportunists would rather not take opportunities where they arise.

            1. So what you’re saying is, we need to select judges the same way we select legislators, which is to say by the same mechanism that produces these laws in the first place?

              No. Voting for every single bastard who sits in government is not going to solve the problem. The power to change this already rests in the hands of the voters. They have chosen not to exercise it, or if you prefer, this is the system they have chosen to have.

            2. I can buy the arguments against life terms for the most part but they still need to be long terms. Volatility on the supreme court is worse than a court that fails to act. Especially when its members are replaced by people with no frame of reference for what they’ve lost.

              Imagine what the court will look like when all of its members are millennials. people who grew up being taught about the supremacy of the state and how irrelevant privacy and personal rights are when pitted against their entitlements and the need to do something for a good cause….

      4. “Yeah, the precedent is screwed up but we’re sticking with it because too many government (and private) agencies have arranged their affairs to take it into account and so the burden on them of reversing ourselves is too high.”

        Oh, you mean like in McDonald?

        We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.

        From the Thomas dissent in McDonald:

        All of this is a legal fiction. The notion that a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not. Today’s decision illustrates the point. . . . neither side argues that the meaning they attribute to the Due Process Clause was consistent with public understanding at the time of its ratification.

  6. This result seems at odds with the plain text and original meaning of the Takings Clause, which appear to make just compensation a prerequisite to taking property for public use. As critics of Williamson County have opined, the Takings Clause is more than a mere remedy. The requirement to pay just compensation “places a condition on the [government’s] exercise of ” the power to take private property in the first instance.

    Well, Mr. Thomas, I think I see the problem here.

    1. Yeah, the government might find that…problematic.

    2. The trouble did not stop with Williamson County. In San Remo Hotel, the Court exacerbated the effects of the Williamson County rule, and, together, the two cases have created an untenable situation for Takings Clause plaintiffs in the federal courts.

      Untenable for whom, kemosabe? It sounds like the feds finds it perfectly tenable. Oh, did you mean the peasants? What’s untenable about getting ground to dust under the weight of inexorable bureaucracy?

      In San Remo Hotel petitioners (hotel owners) challenged a city ordinance that required them to pay a conversion fee on Takings Clause grounds. […] After they lost, petitioners sought relief in federal court and asked the federal courts to consider the takings issues anew. […] The District Court and Ninth Circuit, however, agreed that federal courts owed full faith and credit to the state courts’ judgments

      Pfft, I mean, the state’s judges found the state’s conduct reasonable, what more do you want?

      1. And the bit about “clever state attorneys” is just dirty: in some cases they’ve opted to kick a case up to the federal level and then move to dismiss it on the grounds that the plaintiff failed to exhaust his options in the state court, as Williamson County requires. And sometimes that works.

  7. Here is how takings cases work in most cases. The government comes in and condemns your property and gives you what they think is fair market value. If you think they have no right to do that or are not paying you a fair price, too bad. You get bought out at that price and are expected to litigate the issue at your expense. Maybe in a few years a judge will agree with you and you will get fair compensation. If you don’t have the money to pay to litigate, you are screwed.

    The court is saying that that system is okay. That you should have to go through years of state litigation and begging the very government that is screwing you to reconsider before you can go to federal court. Thomas is absolutely right here.

    1. As worthy as Thomas’ dissent is, the thoughts of the majority would be much more interesting to hear…

  8. RE: Clarence Thomas Faults SCOTUS for Enabling Government Abuse and Undermining the 5th Amendment
    The Supreme Court refuses to hear an important constitutional case.

    Everyone has this all wrong.
    The SCOTUS is here to support and uphold government intrusion, oppression and tyranny.
    One only has to look to the writings of our Founding Fathers to confirm this.

  9. I have it on good authority that Justice Thomas cannot think or speak for himself. It was all the work of Scalia, and his death should have resulted in Thomas becoming a solid progressive vote on the Supreme Court. Maybe Scalia left some kind of flow diagram for him to follow? Or maybe the KKKochtopus is paying him off?

    At least all that wrong think isn’t interfering with his natural ability to dance and rap:

    I guess it’s not racist if he’s conservative, am I right?

  10. I can’t believe this overstuffed burrito ever made it into our Supreme Court. Aside from finally having an opinion after 10 years of sleeping on the bench, he chooses to get upset about insufficient payments on eminent domain, while voting to uphold civil-forfeiture, which is plain out and out government theft with no due cause? Hello?

    1. Sleeping? He was simply exercising his Fifth Amendment right to keep his mouth shut in court.

  11. Our constitutionally guaranteed and protected rights have become mere privileges. Not only is the government considered to have the power to deny them to American citizens, it’s considered to have a duty to determine which citizens may have them and deny them to those citizens who do not meet the governments self created qualifications.

  12. It is true that, in the United States, at least, we have a constitution that imposes strict limits on some powers of the government. But, as we have discovered in the past century, no constitution can interpret or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is given to the government’s own Supreme Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader powers for its own government. Murray Rothbard. (“For a New Liberty,” Fox & Wilkes, San Francisco, 1973, reprint 1994)

    And this is how, bit-by-bit, the government builds a police state.

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