Are You For Real, Justice Kagan?

As predicted, the commentary on the Knick case is flowing like a flood-stage river. For example, Robert Thomas’ commentary in his blog 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. By defending it, Justice Kagan has not covered herself with glory. Quite the contrary.

FOLLOW UP. As we write this follow-up it is the beginning of Novemeber, and a few defenses of Justice Kagan’s over-the-top dissent have begun to appear. Mostly, they try to rise in defense of her worshipful treatment of precedent, not of any substantive defense of the fairness of the result of the case she would like to see. Small wonder. The pre-Knick result of the Williamson County/San Remo Hotel rule was absurd on its face, and it was a blot on the Supreme Court’s stature while it lasted.

In case our meaning is not at your fingertips, let us remind you what that result was. Under it the constitutionally aggrieved property owner, unlike any other Section 1983 plaintiff,  had to sue “first” — so the court said — in state court, and only after losing there would the plaintiff’s case be ripe for litigation in federal court. But if the owner followed that requirement, the state court decision would be deemed preclusive and — “ripe” or not — the  owner’s case invoking the protection of the US Constitution could never be invoked in any court. This is what Justice Kagan wants to inflict on the country? This is what her supporters still want? Stuff and nonsense!