AuthorSomin, Ilya

INTRODUCTION I. Why Williamson County Was Wrong II. Knick and the Court's Existing Precedent on Overruling Precedent A. Williamson County and the Court's Criteria for Reversal of Constitutional Precedent B. Is Knick at Odds with "Precedent after Precedent after Precedent"? III. Knick and Originalist Theories of Precedent A. Theories That Reject All or Nearly All Deference to Non-Originalist Precedents B. Theories That Permit Retention of Wrong, but Deeply Entrenched Precedents IV. Assessing Knick Under Living-Constitution Theories of Precedent A. The Common-Law Approach B. Other Living-Constitution Approaches to Overruling Precedent i. Interpretive Fidelity to Constitutional Meaning ii. The Supreme Court's Legitimacy: The Reflective Equilibrium Theory iii. The "Second-Best Stare Decisis" Theory iv. Reasoned Elaboration of the Criteria Used for Overruling CONCLUSION INTRODUCTION

The Supreme Court's decision in Knick v. Township of Scott was an important milestone in takings jurisprudence. (1) But for many observers, it was even more significant because of its potential implications for the doctrine of stare decisis. (2) Knick overruled a key part of a 34-year-old decision, Williamson County Regional Planning Commission v. Hamilton Bank. (3) Some fear that the Knick decision signals the start of a campaign by the Court's conservative majority that will lead to the ill-advised overruling of other precedents. In his dissent in Franchise Tax Board v. Hyatt, a recent case overruling a different 40-year-old precedent, Justice Stephen Breyer complained that "[tjoday's decision can only cause one to wonder which cases the Court will overrule next." (4) Less than six weeks later, Justice Elena Kagan referenced Breyer's statement in her dissenting opinion in Knick. "[w]ell, that didn't take long. Now one may wonder yet again." (5)

Such fears are, to some extent, understandable, given ideological and jurisprudential differences between the justices and the deep ideological polarization in American society generally. However, at least when it comes to Knick, they are misplaced. This Article explains why the Knick Court was justified in overruling Williamson County, based on both the Supreme Court's own established rules for overruling precedent and on leading theories of stare decisis advanced by individual justices and prominent legal scholars, both originalists and living constitutionalists.

Knick reversed a key provision of Williamson County that created what Chief Justice John Roberts described as a "Catch-22": preventing property owners from filing takings cases against state and local governments in federal court. (6) Under Williamson County, a property owner who claimed that the government had taken her property and therefore owed her "just compensation" under the Takings Clause of the Fifth Amendment, could not file a case in federal court without first securing a "final decision" from the relevant state regulatory agency and "exhausting" all possible remedies in state court. (7) Takings claims were not considered "ripe" for adjudication until these two prerequisites were met. (8) The validity of this second "exhaustion" requirement was the point at issue in Knick.

Even after both Williamson County requirements were met, it was still essentially impossible to bring a federal claim because procedural rules precluded federal courts from reviewing final decisions in cases initially brought in state court. (9) In San Remo Hotel v. City and County of San Francisco, the Court ruled that a final decision in a takings case from a state court precluded relitigation of the same issue in federal court. (10) As Chief Justice Roberts explained in his majority opinion in Knick, "[t]he takings plaintiff thus finds himself in a Catch-22: He cannot go to federal court without going to state court first; but if he goes to state court and loses, his claim will be barred in federal court. The federal claim dies aborning." (11)

To make this system even more absurd, some state and local governments defending against takings claims even exercised their right to "remove" the case to federal court (on the grounds that it raised a federal question). (12) They then successfully moved to get the case dismissed because the property owner did not manage to first "exhaust" state court remedies, as required by Williamson County--a failure caused by the defendants' own choice to have the case removed. (13) All of this, at the very least, made Williamson County a strong candidate for overruling under any reasonable approach to stare decisis. Even if some incorrect precedents should be allowed to stand, Williamson County was sufficiently egregious that perhaps it should not have been one of them.

The rule of deference to precedent derives from the Latin maxim stare decisis et non quieta movere, which means "to stand by things decided and not disturb settled points." (14) Deciding whether to overrule a precedent requires addressing two issues: whether the precedent in question is correct or incorrect, and determining the necessary justifications for overruling an erroneous precedent. (15) If judges conclude that the challenged precedent was wrongly decided, they must decide whether to improve the law by correcting perceived mistakes or letting the mistakes remain in order to preserve reliance interests and respect for the rule of law. (16)

If Williamson County was correctly decided, then it would obviously follow that the Knick Court was wrong to overrule it. Stare decisis only comes into play in a situation where the precedent in question was wrong as an initial matter, but it can be argued that it should be maintained nonetheless. As a prominent recent treatise on judicial precedent puts it, stare decisis enters the picture "when a court has determined that the prior decision was wrongly decided." (17) Justice Antonin Scalia similarly emphasized that "[t]he whole function of the doctrine [of stare decisis] is to make us say that what is false under proper analysis, must nonetheless be held to be true, all in the interest of stability." (18) A recent Supreme Court decision frankly avows that "[respecting stare decisis means sticking with some wrong decisions." (19)

Part I of this Article briefly summarizes the reasons why Williamson County was wrongly decided, (20) and why the Knick Court was justified in overruling it on the merits--at least aside from the doctrine of stare decisis. This Article's purpose is not to defend Knicks rejection of Williamson County against those who believe the latter was correctly decided. (21) Rather, for present purposes, we assume that Williamson County was indeed wrong, and consider whether the Knick Court should have nonetheless, refused to overrule it because of the doctrine of stare decisis. However, as discussed more fully below, the reasons why Williamson County was wrong are relevant to assessing the Knick Court's decision to reverse it rather than keeping it in place out of deference to precedent.

Part II shows that Knick's overruling of Williamson County was amply justified based on the Supreme Court's existing criteria for overruling constitutional decisions, which may be called its "precedent on overruling precedent." While that doctrine is not a model of clarity, Knicks application of it to Williamson County turns out to be relatively straightforward. Part II also addresses Justice Elena Kagan's claim in her Knick dissent, that the majority's conclusion "requires declaring precedent after precedent after precedent wrong," thereby reversing numerous cases that long predate Knick. (22)

Part III explains why the overruling of Williamson County was justified based on the current leading originalist theories of precedent advanced by prominent legal scholars, (23) and by Supreme Court Justice Clarence Thomas in his recent concurring opinion in Gamble v. United States. (24) The key consideration here is that Williamson County itself had no basis in original meaning.

Part IV assesses the overruling of Williamson County from the standpoint of prominent modern "living constitutionalist" and pragmatic theories of precedent. Here too, it turns out that overruling was well-justified. In sum, the result in Knick is defensible based on a wide range of different approaches to stare decisis.


    This Part summarizes the reasons why Williamson County was wrong to require takings plaintiffs to "exhaust" remedies in state court before filing a claim in federal court. (25) The Knick majority was therefore justified in eliminating this requirement--setting aside (for the moment) the doctrine of precedent. These reasons are relevant to any assessment of arguments that the relevant precedent should be preserved for the sake of stare decisis. Under many theories of stare decisis, whether an erroneous precedent should be preserved depends in large part on the reasons why it was wrong, and on the relative egregiousness of the error. This Article does not attempt to provide anything approaching a complete defense of the reasons for believing Williamson County was wrong. (26) We seek only to briefly lay out those reasons so they can then be considered in analyzing the stare decisis issue.

    Knick arose from a dispute over alleged centuries-old gravesites. (27) Rose Mary Knick owned a 90-acre farm in the Township of Scott, Pennsylvania. (28) Members of her family had owned the land since 1970. (29) Beginning in 2008, some other area residents claimed that there were old gravesites on the Knick property and sought access to them. In December 2012, the Township enacted Ordinance 12-12-20-001, which required "[a]ll cemeteries ... be kept open and accessible to the general public during daylight hours." (30)

    In April 2013, the Township's code enforcement officer entered the property and concluded that several stones on the land were actually gravestones, and therefore, the land qualified as a...

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