A Question We Wish Hadn’t Been Asked

On October 2nd, our friend and fellow blogmeister, Robert Thomas, gave us a preview of the coming oral argument in Knick v. Township of Scott in which he posed the following question: Just How Badly Can SCOTUS Screw up Takings Law?

The oral arguments in Knick took place yesterday, and we now have an answer of sorts. There is no limit. Example: when the court granted cert, it did so on the question of whether the Williamson County case should be reconsidered to eliminate the requirement that the aggrieved land owner whose land has been taken without compensation, may not sue in federal court for this constitutional violation, but must instead sue in state court to “ripen” the case, 42 USC Sec 1943 to the contrary notwithstanding. So we started reading the transcript of the Knick oral argument, and what did we find? For openers, a question from the bench having to do with abstention which is in no way connected to the question presented, and which was dealt with by the court in Allegheny County v. Frank Mashuda Co. some time ago — a fact the questioner was obviously not acquainted with. Naturally, abstention was never raised or briefed below in the Knick case. And so it goes.

If you want to read the transcript in all its gory glory, go to https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/17-647_aplb.pdf (copy and paste this link in your browser)

There you will find such gems as Justice Breyer’s question asking whether SCOTUS should “let this sleeping dog lie,” overlooking the principle that the core function of the supreme court is to decide legal “sleeping dogs,” not perpetuate them. Besides, the owner’s counsel disposed of that idea by pointing out that Williamson County was not a sleeping dog but rather a wild dog running through the country. Still, in spite of our pessimism (of which more presently) we must rein in our feeling of impending doom and await the decision. For in spite of the court’s all too obvious misunderstanding of procedure in takings cases there is some likelihood that something in Williamson County will be overruled. And if that happens that would be progress — a step in the right direction. So let’s stay tuned. And pray.

Oh, and about that pessimism of ours, we were influenced years ago by the line of the late Bert Burgoyne, a great condemnation lawyer in Detroit, who once observed in our presence that “The problem with this field of law is that liberal judges don’t believe in private property, and conservative judges don’t believe in making the government pay.” As time goes on, we find the unpleasant truth embedded in that line to be more and more obvious. But even that neither explains nor justifies the intellectual and moral mess the courts have made of things law. Along with our co-author Michael M Berger, we just completed a law review article available in manuscript form on SSRN, entitled, The Nasty Brutish and Short Life of Agins v. City of Tiburon. We show there how SCOTUS so screwed up its opinion in Agins that it had to overrule it, not once but twice, thus suggesting that in this field of law, SCOTUS has a reverse Midas touch: just about everything it touches in this field turns to intellectual crap.

So read that transcript, and make up your own mind.