As predicted, the commentary on the Knick case is flowing like a flood-stage river. For example, Robert Thomas’ commentary in his blog www.inversecondemnation.com alone is filling pages with analysis and commentary. Good stuff that. Check it out. We stand in awe of his prodigious exertions, but we wonder if Mr. Roberts is able to do what he has done, and still have time to accomplish other things we all must do in life to survive. More power to him.
But so far, we haven’t seen much said in defense of Justice Kagan’s over-the-top dissent. Why over the top? Apart from its “chicken little” the-sky-is-falling tone (or, the-sky-has-fallen, if you prefer) we are amazed that so little is being said about the content of her dissent. She has risen up like an angry giant in defense of — are you ready? — stare decisis. And what might be wrong with that? Nothing, actually, so long as one stays within the bounds of reason. But stare decisis must make sense. Your faithful servant is an old geezer, which is to say of the generation during which the sainted Earl Warren presided over the Supreme Court where he and his merry men wielded the powers of precedent-breaking and precedent-making with a mighty hand. Justice Kagan seems to have forgotten that during the Warren era precedents were being broken like so much kindling. We need only mention familiar landmark rulings like Brown, Miranda, Roe and all those others which were then Johnny-come-lately precedent breakers.
So if we reflect a bit on that past and look at the Kagan dissent in Knick, we come up with the proposition that if you’re up there and you decide to chop up some old precedents like so much kindling, you’re a hero, provided your deeds of precedential derring-do are on the liberal side of the legal ledger. But if, as in Knick, your intellectual/doctrinal precedent-chopping favors the conservatives, then you’re an icky-poo bad guy. Instead, says Justice Kagan, you should go supplicate the legislature to change the law — even if that law is judge-made, works a bizarre constitutional injustice and violates the explicit constitutional rights of folks you disfavor. But no overruling Holy stare decisis and declaring the constitutionally offending legislation (or precedent) unconstitutional in order to bring some rationality into the lives of constitutionally aggrieved Americans. Sorry, your Honor, that isn’t our idea of good law or justice, or for that matter, what we were taught in law school.
What’s good for the goose should be likewise good for the gander, goes the old proverb, and Justice Kagan should reflect on its message.
Bottom line: the Williamson County rule denying American property owners access to federal courts (or at times any courts) to protect their federal constitutional property rights was raw injustice that stunk to high heaven. Good riddance to it, and by defending it, Justice Kagan has not covered herself with glory. Quite the contrary.