SCOTUS Today: Four Down, Six to Go - and One of the Four Overturns Precedent, Incites Liberal Worry, and Offers Significant Litigation Opportunity

The Court handed down four more decisions Friday morning, making 12 for the week. Two of them merit comment here. We’ll likely see the final six this week, before the Court leaves for the summer, and we should expect some incendiary divisions of opinion in that batch. Stay tuned.

Of last Monday’s foursome, three defied expected ideological lines. There was some of that on Thursday, too. See my recent postings regarding those cases. Last Friday saw a bit of the unexpected as well, with Justice Kavanaugh perhaps surprising at least some of his detractors by leading the Court in a decision in Flowers v. Mississippi, which strongly reaffirmed Batson v. Kentucky, reversing the murder convictions of a petitioner who had been tried no fewer than six separate times. Applying multiple factors and assessing the history of the case in which a single prosecutor serially struck virtually all black jurors, seven members of the Court (Thomas, J., and Gorsuch, J., dissenting) held that the state’s peremptory strikes were motivated in substantial and fatal part by racially discriminatory intent. As Justice Alito pointed out in concurring, this was a most unusual case, not likely to be repeated, that struck no real new legal ground. But it is a firm statement against racially motivated conduct by prosecutors.

A case that will have significantly greater resonance is Knick v. Township of Scott, Pennsylvania. This is a “regulatory takings” case of the sort that property rights advocates have been seeking for years. The facts are a bit odd. The Township of Scott passed an ordinance requiring that “[a]ll cemeteries . . . be kept open and accessible to the general public during daylight hours.” Ms. Knick’s rural property has a small family graveyard, and she was served with a notification that she was violating the ordinance because she did not open her property to the public. She sought declaratory and injunctive relief on a takings theory in state court but did not seek compensation. The Township then withdrew the violation notice and stayed any enforcement, leaving Ms. Knick unable to show irreparable injury justifying an injunction. Thereupon, Ms. Knick then filed an action in federal district court under 42 U. S. C. § 1983, alleging that the ordinance violated the Takings Clause of the Fifth Amendment. Overruling a previous precedent (Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172), the five conservative Justices, led by the Chief, held that the government violates the Takings Clause when it takes property without compensation and a property owner may bring a Fifth Amendment claim under §1983 at that time. In short, a property owner subject to a governmental taking may bring a 1983 action immediately, without exhausting any state administrative remedies. The four liberal Justices, in a dissent written by Justice Kagan, alleged that the majority was casting aside more than 150 years of precedents and opening the floodgates to cases that will avoid state procedures and fall upon the federal courts. Whether or not there will be a flood of cases, one cannot yet say, though property rights advocates and their interest groups already are trumpeting the case. What is clearer is that potential plaintiffs, including corporate and institutional entities, now have a stronger shot in demonstrating ripeness in asserting constitutional claims.

In lamenting what the dissenters see as a further erosion by the conservatives of stare decisis jurisprudence, Justice Kagan concludes with the following:

Just last month, when the Court overturned another longstanding precedent, JUSTICE BREYER penned a dissent. See Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___, ___ (2019). He wrote of the dangers of reversing legal course “only because five Members of a later Court” decide that an earlier ruling was incorrect. Id., at ___ (slip op., at 13). He concluded: “Today’s decision can only cause one to wonder which cases the Court will overrule next.” Ibid. Well, that didn’t take long. Now one may wonder yet again.

There is at least one case still pending—Kisor v. Wilkie, in which the Auer deference rule is under reconsideration—that might provide further information on this controversial subject.

By attorney Stuart Gerson of Epstein Becker Green, former Acting Attorney General of the United States and Assistant Attorney General for the Civil Division of the Department of Justice: https://www.ebglaw.com/stuart-m-gerson/

This article has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company.