Justice Brett Kavanaugh appeared hesitant to overturn a decades-old ruling that’s been highly criticized by those on the right, the second time in a month he’s expressed concern with the prospect of overturning precedent.

The U.S. Supreme Court needs more than just the fact that a decision is wrong to set it aside, Kavanaugh said during oral argument Jan. 16 in a dispute over a municipality’s right to take private property for the greater public good.

There also needs to be some “special justification” for doing so, he added.

Kavanaugh is likely the determining vote as an eight-member court already heard the case, Knick v Township of Scott, Penn., before he took the bench and fortified the court’s conservative majority. Presumably the justices were split 4-4, and so they set the case for reargument.

Kavanaugh’s ultimate vote in these cases could foretell how he’ll view requests to overturn more controversial precedent, most notably those dealing with abortion.

The court is currently deciding whether to take up a challenge to Indiana’s strict anti-abortion law, which tests the durability of those precedents.

Exhausting Remedies

At issue here is whether land owners asserting a federal takings claim must first exhaust state court remedies before they can head to federal court.

That’s what the Supreme Court held in 1985, but fellow-Trump nominee Justice Neil M. Gorsuch said in October that the court’s earlier ruling singles out the constitution’s property protection for “disfavored treatment.”

Even if the junior justice agrees with Gorsuch that the court’s earlier decision was wrongly decided, Kavanaugh might not be a sure vote to overturn it.

Kavanaugh’s concerns echoed those he aired earlier in the month in a case in which the justices are being asked to overturn another longtime precedent regarding state sovereignty.

In that case, Kavanaugh noted the difficulty in determining when a prior decision is so egregiously wrong that it justifies a later court overturning it.

Takings Timing


The heart of the legal dispute in Knick is the Fifth Amendment’s prohibition against government’s taking private property without providing “just compensation,” and the case turns on when a Fifth Amendment violation actually occurs.

Relying on the court’s earlier decision, the Pennsylvania township argues that the violation doesn’t occur until there’s been a determination that just compensation isn’t required. That’s often done by a state court in a “reverse condemnation” action.

Therefore, there’s no federal claim to press in federal court until the state court proceedings are over, the township’s attorney, Teresa Ficken Sachs, argued.

But Rose Mary Knick, the land owner challenging a local ordinance requiring public access to cemeteries located on private property, argues that the violation occurs the instant the locality “takes” the property.

So land owners should be able to bring their claims in federal, as well as state, courts, J. David Breemer, Knick’s attorney, argued.

U.S. Solicitor General Noel Francisco took a position somewhere in between.

The violation doesn’t actually occur until there’s been a determination about compensation, he argued.

But land owners should still be able to bring their claims in federal court because they are pressing a federal right, Francisco told the justices.

Justice Ruth Bader Ginsburg once again didn’t attend the oral argument, as she is recovering from surgery to remove cancerous cells from her lungs.

She will participate in the ultimate decision via the briefs and transcripts, Chief Justice John G. Roberts Jr. told the court room.

Today wrapped up the justices January oral argument session, and the next round begins Feb. 19.

The case is Knick v. Township of Scott, U.S., No. 17-647, argued 1/16/19.