Takings

Supreme Court Overrules Precedent that Created "Catch-22" for Property Owners Attempting to Bring Takings Cases in Federal Court

The close 5-4 ruling is an important victory for constitutional property rights.

|The Volokh Conspiracy |

Rose Mary Knick, the plaintiff in Knick v. Township of Scott, with her lawyers from the Pacific Legal Foundation.

In Knick v. Township of Scott, an important decision issued this morning, the Supreme Court overruled a precedent that creates a Catch-22 blocking property owners from bringing takings cases against state and local governments in federal court.

The main point at issue in Knick was whether the Court should overrule Williamson County Regional Planning Commission v. Hamilton Bank  (1985). Under Williamson County, a property owner who contends that the government has taken his property and therefore owes "just compensation" under the Fifth Amendment, could not file a case in federal court until he or she first secured a "final decision" from the relevant state regulatory agency and "exhausted" all possible remedies in state court. Even then, it was still often impossible to bring a federal claim, because various procedural rules preclude federal courts from reviewing final decisions in cases that were initially brought in state court. I discussed the issues at stake in the case in a Wall Street Journal op ed, and more fully here, and in an amicus brief I coauthored on behalf of the Cato Institute, the National Federation of Independent Business, the Southeastern Legal Foundation, the Beacon Center of Tennessee, the Reason Foundation (which publishes Reason magazine and this website), and myself.

The majority opinion by Chief Justice John Roberts overrules Williamson County and eliminates the Catch-22 that we highlighted in our brief, and which has long  been heavily criticized by legal scholars and others. Here is the key part of the opinion:

In Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985), we held that a property owner whose property has been taken by a local government has not suffered a violation of his Fifth Amendment rights—and thus cannot bring a federal takings claim in federal court—until a state court has denied his claim for just compensation under state law….

The Williamson County Court anticipated that if the property owner failed to secure just compensation understate law in state court, he would be able to bring a "ripe" federal takings claim in federal court. See id., at 194. But as we later held in San Remo Hotel, L. P. v. City and County of San Francisco, 545 U. S. 323 (2005), a state court's resolution of a claim for just compensation under state law generally has preclusive effect in any subsequent federal suit. The takings plaintiff thus finds himself in a Catch-22: He cannot go to federal court without going to state court first; but if he goes to state court and loses, his claim will be barred in federal court. The federal claim dies aborning.

The San Remo preclusion trap should tip us off that the state-litigation requirement rests on a mistaken view of the Fifth Amendment. The Civil Rights Act of 1871, after all, guarantees "a federal forum for claims of unconstitu­tional treatment at the hands of state officials," and the settled rule is that "exhaustion of state remedies 'is not a prerequisite to an action under [42 U. S. C.] §1983….'" But the guarantee of a federal forum rings hollow for takings plaintiffs, who are forced to litigate their claims in state court.

We now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with the rest of our takings jurisprudence, and must be overruled. A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it. That does not mean that the government must provide compensation in advance of a taking or risk having its action invalidated: So long as the property owner has some way to obtain compensation after the fact, governments need not fear that courts will enjoin their activities. But it does mean that the property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and therefore may bring his claim in federal court under §1983 at that time.

Chief Justice Roberts also emphasized that Williamson County created a double standard under which Takings Clause claims are subjected to a perverse requirement that is not imposed on other constitutional claims against state and local governments:

The state-litigation requirement relegates the Takings Clause "to the status of a poor relation" among the provisions of the Bill of Rights. Dolan v. City of Tigard, 512
U. S. 374, 392 (1994). Plaintiffs asserting any other constitutional claim are guaranteed a federal forum under §1983, but the state-litigation requirement "hand[s] authority over federal takings claims to state courts." San Remo, 545 U. S., at 350 (Rehnquist, C. J., concurring in judgment). Fidelity to the Takings Clause and our cases construing it requires overruling Williamson County and restoring takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among the other protections in the Bill of Rights.

As emphasized in our amicus brief, one of the main reasons why the framers of the Fourteenth Amendment chose to "incorporate" the Bill of Rights against the states in 1868 was to preclude abuses by state governments, and to ensure that these rights could be vindicated in federal court. State courts can be and sometimes are tilted in favor of their own state and local governments. Particularly in the many states where state judges are elected, they may be part of the same political coalition as the state and local government officials who adopted the policy that may have violated the Takings Clause. In many—perhaps even most—situations, it will make little difference whether a takings claim is heard in state court or federal court. But sometimes, a federal forum is essential to ensuring fair consideration of the property owner's claims.

The standard rationale for Williamson County, defended in Justice Elena Kagan's dissent today, is that the state has not really "taken" property without just compensation until a state court has reached a final decision upholding the government's actions. Chief Justice Roberts nicely dispenses with that theory:

Contrary to Williamson County, a property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it. The Clause provides: "[N]or shall private property be taken for public use, without just compensa­tion." It does not say: "Nor shall private property be taken for public use, without an available procedure that will result in compensation." If a local government takes private property without paying for it, that government has violated the Fifth Amendment—just as the Takings Clause says—without regard to subsequent state court proceedings….

The Fifth Amendment right to full compensation arises at the time of the taking, regardless of post-taking remedies that may be available to the property owner. That principle was confirmed in Jacobs v. United States, 290 U. S. 13 (1933), where we held that a property owner found to have a valid takings claim is entitled to compensation as if it had been "paid contemporaneously with the taking"—that is, the compensation must generally consist of the total value of the property when taken, plus interest from that time.

I would add that the same reasoning could be used to deny a federal forum for numerous other constitutional rights claims. By the logic of Williamson County, a state government has not really censored speech until a state court upholds the censorship policy. It has not really engaged in unconstitutional racial discrimination in hiring until a state court issues a "final decision" holding that the challenged hiring rules are legal. And so on.

Chief Justice Roberts' opinion also effectively explains why Williamson County should be overruled based on the Supreme Court's far from precise criteria for reversing precedent. As he emphasizes, "Williamson County was not just wrong. Its reasoning was exceptionally ill founded and conflicted with much of our takings jurisprudence." He also notes that the ruling "has come in for repeated criticism over the years from Justices of this Court and many respected commentators,"  that it has "become unworkable in practice," and that "there are no reliance interests on the state-litigation requirement" because allowing takings cases to go to federal court would not lead to the invalidation of otherwise lawful state and local government policies.

Given the serious flaws of Williamson County, it is unfortunate that Knick turned out to be a close 5-4 decision, with the justices divided along ideological lines—the five conservatives in the majority and four liberals in dissent. Indeed, the case was reargued in order to include  Justice Brett Kavanaugh, who had not yet been confirmed at the time of the initial oral argument. It now seems highly likely that the Court took this step because the justices were previously split 4-4. I would add, however, that Kavanaugh's participation ultimately led to the same outcome as what likely would have occurred had Justice Anthony Kennedy remained on the Court. Kennedy was a critic of Williamson County, and had joined a 2005 concurring opinion urging the Court to consider reversing it.

The dissent by Justice Elena Kagan fails to provide any good justification for keeping Williamson County in place. Much of it seems to assume that the majority requires immediate payment of compensation any time a state or local government adopts any policy that might potentially qualify as a taking:

[A] government actor usually cannot know in advance whether implementing a regulatory program will effect a taking, much less of whose property. Until today, such an official could do his work without fear of wrongdoing, in any jurisdiction that had set up a reliable means for prop­erty owners to obtain compensation. Even if some regula­tory action turned out to take someone's property, the official would not have violated the Constitution. But no longer. Now, when a government undertakes land-use regulation (and what government doesn't?), the responsi­ble employees will almost inescapably become constitu­tional malefactors. That is not a fair position in which to place persons carrying out their governmental duties.

But in fact the majority in no way turns government officials into "constitutional malefactors" merely because they enact a "regulatory program." It just holds that aggrieved property owners can then bring a takings case in federal court. There is no constitutional violation, however, unless the court finds that the program in question effects a taking and the state didn't pay. Exactly the same thing happens when the regulatory program in question is challenged in state court, and the latter rules that it was a taking.

Justice Kagan also argues that the Williamson  County rule is supported by a "mountain of precedent" going back to the nineteenth century. But, as the majority points out, those cases addressed situations where the plaintiff sued for injunctive relief blocking a taking, rather than for monetary compensation. Once mechanisms for providing monetary compensation were established after 1870, injunctive relief was not an appropriate remedy for a Takings Clause claim. Thus, "every one of the cases cited by the dissent would come out the same way—the plaintiffs would not be entitled to the relief they requested because they could instead pursue a suit for compensation."

I would add that there is a crucial distinction between a situation where the state does not deny that a taking has occurred, but establishes a compensation procedure that does not provide immediate payment, and one where the state argues that there was no taking in the first place. As Roberts notes, the former scenario does not amount to a violation of the Takings Clause, so long as the state ultimately pays full compensation—including accumulated interest for the period that elapses between the moment when the taking took place and the time when compensation was actually paid [or, more precisely, any violation can be remedied by subsequent payment of full compensation]. The latter case, by contrast, is no different from any other situation where a citizen claims the state has violated the federal Constitution, and the government denies it. Such cases can and should be entitled to a forum in federal court.

Justice Kagan even defends the "Catch-22" created by Williamson County, arguing that it is actually a feature rather than a bug, because it allows state courts to address issues on which they have greater expertise than federal courts. For reasons I explained in this article, the same superior expertise rationale can be used to justify consigning a wide range of other federal constitutional claims to state court, in situations where state judges are likely to have greater expertise than federal ones.

Finally, I am happy to report that the federal government's strange "Klingon forehead" rationale for retaining large parts of Williamson County ended up playing no part in the Court's decision. Neither the majority justices nor the dissenters endorse it. Indeed, they barely even mention it (the majority dispenses with it in a footnote).

UPDATE: The specific details of this case turned out to have little impact on the outcome. But for those interested, the Pacific Legal Foundation (which represented the property owner), has a detailed description of them here.

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  1. Note that Thomas concurring opinion in Gamble stating that the court should overrule bad precedent. Was Thomas’ concurring opinion a forewarning of things to come? Kagan’s defense to Williamson was weak, as somin indicated. Are there more precedents to topple with the remaining cases?

    1. Maybe they are jockeying about roe v wade. I didn’t notice Kelo even mentioned.

  2. “[A] government actor usually cannot know in advance whether implementing a regulatory program will effect a taking, much less of whose property.”

    Can Elena Kagan be impeached for senility? If the government doesn’t know it is taking something in advance of the taking, when will it ever know?

    1. The only way to find out the contents of a bill are to pass that bill into law.

    2. “Can Elena Kagan be impeached for senility? If the government doesn’t know it is taking something in advance of the taking”

      When they plan to take the entire property, sure. But what about, say, constructive takings? Where ownership of the property doesn’t change hands, but owner can no longer use the property for the purpose intended when it was obtained?

      1. They should anticipate that effect. In fact, usually that effect was intended.

  3. I don’t see the big deal either way. State court or federal court? Big whoop. Not sure why I should care.

    Seems to me that if the issue was that there is a rule that losing in state court would preclude federal courts from getting into the matter, then the better solution is simply to repeal that rule.

    Frankly, the states should probably be glad about this. Now, they are abdicated for all responsibility to adjudicate takings claims. State legislators can repeal any process they have for adjudicating such claims, and replace that process with a simple: “Go to Federal Court”.

    1. “are abdicated for”

      Lol. SMDH.

    2. But states often don’t want to pay and their judiciaries are often for career reasons exceptionally eager to please them on such matters. San Remo v San Francisco loused this up royally as Rehnquist noted in his concurrence which suggested that Williamson had been wrongly decided.

    3. The big deal is attorney’s fees for a prevailing plaintiff in section 1983 litigation. The secondary big deal is the higher cost of federal litigation. And though Roberts notes that injunctive relief may be inappropriate when the local government offers an adequate remedy by way of state litigation, he does not say that declaratory relief and fees are also unavailable.

  4. Given that the two prongs of the Catch-22 are Reno and Williamson, and given that the state of affairs was clearly wrong, I’m not convinced which one ought to go.

    Removing Reno would put property owners in the position where they could seek Federal relief after exhausting State Law claims. This would place them in the same (relative) position as Habeas claimants alleging constitutional defects in their state criminal trials (right?).

    1. As Justice Kagan noted in her dissent, Congress has always been free to amend 28 U.S.C. 1738 to eliminate the preclusion trap, a creature of statutory, not constitutional law. Score one for Justice Kagan.

      1. Congress had always been free to eliminate all sorts of unconstitutional law by changing those laws. Does that mean the courts should just butt out?

        1. Why is section 1738 unconstitutional? It isn’t in fourth amendment cases governed by Allen v McCurry?

          1. How can any kind of catch-22 be constitutional due process?

            1. There’s nothing magical about due process that says it has to run evenly and in your favor.

              1. But it has to be due process, not just “process”. And that would appear to me to rule out catch 22 type arrangements.

                1. The exact same comment you responded to appears to be a proper response to your comment.

                  There’s nothing magical about due process that says it has to run evenly and in your favor. The process has to be there and has to be available to you. (that’s what makes it “due”). It doesn’t have to come out in your favor.

                  1. It doesn’t have to run in your favor, but if it’s guaranteed to run against it, it ain’t due process. “Catch-22″s are guaranteed losses.

                    1. “if it’s guaranteed to run against it, it ain’t due process”

                      I’m aware of your conclusion, you don’t have to repeat it.

                      “Due” process means you have to get it. It doesn’t mean you have to win. Or even have a good chance to win.

                      Guilty criminals should lose a fair trial 100% of the time. According to your conclusion, it’s a violation of due process to give them a fair trial.

                    2. It has to be possible for a defendant to win, or they’re not getting a fair trial. They don’t have to win in any particular case, or even in very many, but if the process is designed so that they lose automatically, it no longer qualifies as due process.

                    3. “It has to be possible for a defendant to win, or they’re not getting a fair trial.”

                      Guilty criminals are supposed to lose fair trials. By definition of everybody but you, if the guilty person won, the trial was UNfair.

                    4. James: Read the _Fine_ Article again: The two decisions together meant that regulatory Takings complainants could not even get into federal court. If the state process was plainly biased and unfair,- which is quite likely when the state process is controlled by the same politicians as are depriving the complainants of the use of their property in the first place, there was NO federal process, due or not.

                    5. ” The two decisions together meant that regulatory Takings complainants could not even get into federal court.”

                      Neither can complainants who allege diversity jurisdiction and $74,999 in damages.

                    6. The two decisions together meant that regulatory Takings complainants could not even get into federal court.

                      With one exception: if states failed/refused to provide a procedure for compensation. Then there’s nothing to exhaust.

                    7. Neither can complainants who allege diversity jurisdiction and $74,999 in damages.

                      Or even $75,000.

                      Not that your comment is relevant to anything.

                    8. “Not that your comment is relevant to anything.”

                      I’m sorry you’re too stupid to see the obvious relevance.

    2. I was wondering the same thing. It seems that maybe the Court’s decision here was to treat takings claims like other section 1983 claims, which generally do not require exhaustion of state remedies.

  5. “a situation where the state does not deny that a taking has occurred, but establishes a compensation procedure that does not provide immediate payment…Roberts (says that) the former scenario does not amount to a violation of the Takings Clause”

    OK, can anyone explain how Roberts reconciles this with

    “If a local government takes private property without paying for it, that government has violated the Fifth Amendment—just as the Takings Clause says—without regard to subsequent state court proceedings”

    Or subsequent federal proceedings, I would have thought.

    Obviously I’m missing some obvious legal point. But we have a bunch of helpful commenters who would be glad to tell me how stupid I am, so I’m grateful for any clarifications.

    1. Can’t say for sure (because trying to know what’s really going on inside Roberts’ head is a quick route to insanity) but my best guess is that he was trying to find a way to keep routine bureaucratic delay from triggering lawsuits.

      In other words, I think he’s trying to distinguish “We admit owe you the money and we’ll pay you when we get to it” from “We don’t owe you anything until you sue us for it and win”.

      1. It seems like “just compensation” requires payment at the time of the taking. Where are you supposed to live between the time the government kicks you off of your land and the time they get around to providing compensation?

        1. “Just compensation” is due when the property is taken. But if the first party and the second party don’t agree what compensation is just…

        2. Yes, a late payment is still unjust. But I can see the argument that a late payment can be a different cause of action than a 5th Amendment Taking.

          Consider an admittedly extreme example – the government takes a small corner of your property to support one anchor for their new police radio tower. Pro-rated across the rest of the lot, the value of land they’re taking is maybe $1000. They stall too long to pay you. That’s small claims court stuff. No need to make that a federal Takings case.

          1. Some people raise takings claims when they still own 100% of the property. Because, say, they wanted to operate a strip mine, and if they have to mine in a way that mitigates damages to nearby property, the mine they want to operate isn’t economically viable.

        3. Yes, and if you are paid later you are owed interest on the sum.

  6. Oh my God. Won’t someone please think of the bureaucrats?

    1. “Until today, such an official could do his work without fear of wrongdoing…”

      Yeah, a state official losing some sleep is much worse than the abrogation of private property rights. Kagan, meet woodchipper.

  7. I don’t have any relevant practical experience in this subject. But I would guess that the problem is not usually that a taking takes place with no compensation at all, but one of two things… either the state doesn’t actually believe that a taking has occurred at all, or the taking is clear-cut and the argument is over what compensation is “just”. Market price happens when a willing buyer meets a willing seller, but takings cases involve unwilling sellers.
    I’m wondering what happens where a state has a process for setting a fair-market value, but the former property-owner, now free to do so, jumps straight to federal court and doesn’t bother to wait to see what the state’s determination of fair-market value might be.

    In private transactions the seller pays some of the costs associated with a property transfer. I wonder if litigation costs can be deducted from the compensation paid.

    1. “In private transactions the seller pays some of the costs associated with a property transfer. I wonder if litigation costs can be deducted from the compensation paid.”

      I suppose litigation costs, and other transaction costs, should be added to the amount of the compensation. Why should the takee be out such costs just because the government took his property?

      1. They would pay the litigation costs because they chose to litigate. Choices have consequences.

        1. And the state’s choice to take the property has consequences. Justly, those consequences should include the cost of adjudicating the value of the property.

          1. ” the state’s choice to take the property has consequences.”

            Yes, they’re spelled out in the Constitution, they’re “Just Compensation”. However, the requirement for “due process” DO NOT specify “due process at no cost to the citizen”.

            There’s two reasons to fight a condemnation: The compensation offered is not just, and an emotional attachment to the property in question. A suit for one of these should result in a win, for other it should be a loss.

  8. “As emphasized in our amicus brief, one of the main reasons why the framers of the Fourteenth Amendment chose to “incorporate” the Bill of Rights against the states in 1868 was to preclude abuses by state governments, and to ensure that these rights could be vindicated in federal court. State courts can be and sometimes are tilted in favor of their own state and local governments. Particularly in the many states where state judges are elected, they may be part of the same political coalition as the state and local government officials who adopted the policy that may have violated the Takings Clause.”

    If state government is being “abusive” then wouldn’t the solution be for the individual to “vote with their feet” and go to another state? Foot voting seems to be your solution except for when your preferred rights are involved, at which point the courts “get it right” when they vindicate judicial protection against the state.

    1. That’s your solution?

      To bug out?

      Yeah…no…that’s not how we do things it the United States.

      https://www.youtube.com/watch?v=ZwMVMbmQBug

    2. If state government is being “abusive” then wouldn’t the solution be for the individual to “vote with their feet” and go to another state?

      Uh, that only works prospectively. Takings cases are retrospective.

      Or to put it another way, yes, you should vote with your feet if your state government is abusive, but that doesn’t do anything to get you compensation for the property they already took.

  9. Roberts is wrong when he insists that no other constitutional right requires resort to state court first. Criminal defendants arrested or searched in violation of the fourth amendment cannot sue under section 1983 until and unless they raise their fourth amendment rights in the associated state criminal prosecution and secure a successful outcome. If the state court denies the motion to suppress and convicts, SCOTUS held in Allen v. McCurry that state preclusion law made applicable by 28 U.S.C. 1738 bars the fourth amendment claim. That’s the same preclusion trap that is said to be so objectionable here. And of course it’s a statutory trap, not a constitutional trap since Congress has always had the power to amend the statute.

  10. Just when I was thinking it might be safe to support a moderate Democrat in 2020, the Ginsburg, Breyer, Kagan, Sotomayor gang tries to convince me otherwise.

    In general, I’d love to get rid of Trump but if I lived in a state where my vote for President actually mattered (it doesn’t so I can vote on principle and usually vote (L), not for the specific candidate but for the concept), the Supreme Court is just too important and decisions like this make it clear to me I would have to hold my nose and vote for someone who would replace Breyer and Ginsburg with rational actors.

    1. “if I lived in a state where my vote for President actually mattered ”

      You can safely vote (L) on principle wherever you happen to live. Among hundreds of millions of Americans in history, none has ever cast THE deciding vote in THE deciding state in a presidential election. (And, no, it didn’t ‘almost’ happen in Florida in 2000 — that’s like saying a terrible golfer whose best shot ever on par 3 came withing 100 feet of the hole ‘almost’ got a hole in one).

      1. ” no, it didn’t ‘almost’ happen in Florida in 2000″

        It happened to FIVE people in Florida in 2000.

        I don’t, as a rule, tell people how they should vote. But I concur with your general thesis, which I’m reading as “vote for who you want to win, not against who you’re afraid will win.”

  11. In a straight condemnation case (not an inverse condemnation or “regulatory taking” case), the statutes typically allow either (a) a “quick take” where the government takes immediate title to the property, and pays its estimate of value into court, with the amount of compensation (if the owner rejects the government’s estimate) to be determined after trial, or (b) a deferred taking, where title doesn’t pass to the government until after the condemnation trial and the determination of the amount of just compensation. At least in some cases, in a deferred taking case, if the government thinks the value determined by the court is too high, it can decide not to take the property. In the latter situation, when does the taking-without-compensation occur under CJ Roberts’ analysis?

  12. […] Cato actively urged the property owner’s case in Knick, a case arising from a Pennsylvania law that imposed various uncompensated mandates, barbed by fines and penalties, on the owners of land on which persons are buried. Pennsylvania is known for its rural practice of “backyard burials.” Ilya Shapiro has one quick reaction and Ilya Somin, who has written extensively on Knick and the constitutional issues it raises, has another. […]

  13. Not to be too cynical but much of the jostling and bickering is over the “pecking order” of rights. Liberals/Progressives have guns, religion, and property rights at the bottom of the pecking order. In contrast, they have abortion, gender, gender orientation at the top of the pecking order. While liberals do not believe in reverse discrimination, as a general rule, everyone will put at or near the top race and national origin protection.

    The much-debated Obama statement of “bitter people clinging to their guns and religion” and “you didn’t build that business” is a great example of the divide between elitists and the rest of the country. SCOTUS plays out similar priority conflicts.

    1. There’s no reason that everybody should have the same “pecking order” of rights. There’s a good argument that all of the federal judges should, but people remain free to disagree with their government.

      All rights find their boundaries where they interact with the (various) rights of other people. This means that clarifying the boundaries always means limiting SOMEBODY’S rights. It usually turns out that the vast majority are unaffected in any meaningful way. Clarifying under what circumstances a state may limit practice of abortion doesn’t affect me at all… I don’t own such a medical practice, practice it, nor have the sort of reproductive equipment within my body. Determining that a 3D-printer file which can make a piece of bent metal qualifies as “machine gun parts” doesn’t affect me, as I do not have a 3D-printer. Now, when they try to pass a law that saying mean-but-true things about the President is a crime, that one might be close enough to home to worry about. Until then, though, from my perspective, these are thought experiments rather than limits on my behavior.

  14. Ilya Somin is infused with confirmation bias. Kagan’s dissent is very strong. It is the best thing I’ve read so far in 2019.

  15. […] overruled by close 5-4 majorities (including in Knick v. Township of Scott, which I analyzed in this post), and another important precedent has been significantly eroded in the Kisor case. The liberal […]

  16. […] overruled by close 5-4 majorities (including in Knick v. Township of Scott, which I analyzed in this post), and another important precedent has been significantly eroded in the Kisor case. The liberal […]

  17. […] overruled by close 5-4 majorities (including in Knick v. Township of Scott, which I analyzed in this post), and another important precedent has been significantly eroded in the Kisor case. The liberal […]

  18. […] overruled by close 5-4 majorities (including in Knick v. Township of Scott, which I analyzed in this post), and another important precedent has been significantly eroded in the Kisor case. The liberal […]

  19. […] overruled by close 5-4 majorities (including in Knick v. Township of Scott, which I analyzed in this post), and another important precedent has been significantly eroded in the Kisor case. The liberal […]

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