Great Dissent!

If you are a “ripeness” maven who is into the incredible intellectual, doctrinal and moral mess that is the law of ripeness in inverse taking cases, do read the brand new dissenting opinion of Justices Thomas and Kennedy in Arrigoni Enterprises v. Durham, No. 15-631,  578 U.S. ___ (2016) that came down today along with, alas, an order denying certiorari.

Go to  and see for yourself.

What this order and dissent demonstrate to us is that the ripeness mess is not a case of the Supreme Court failiure to understand the problem as we supposed in the past from time to time. It is now clear that no intelligent, English speaking person can possibly read the expository part of this dissent and still suppose that this court-created morass of Kafkaesque procedures, rampant conflicts of decision and outright judicial refusal to deal with an important constitutional issue that affects a fundamental constitutional right has been created inadvertently.

We are supposed to respect the courts because of the importance of their function. But respect has to be earned, and it is difficult to respect the prevailing “ripeness mess.”

Note that the dissent cites with approval a law journal article by Michael Berger and your faithful servant. We are flattered, but that does not change the fact that the law involved here is a mess.

Follow up. For a concise summary of the Thomas-Kennedy dissent, see the analysis of our fellow blogger Robert Thomas on