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Kavanaugh Key Vote as Justices Overturn Property Rights Case (2)

June 21, 2019, 2:33 PMUpdated: June 21, 2019, 8:04 PM

The U.S. Supreme Court overturned a decades-old precedent requiring that those claiming their property was taken by government without just compensation must go to state court before going to federal court.

Brett Kavanaugh was the key vote, as the court was presumably tied 4-4 when it first considered the case in October, when the junior justice was still embroiled in his confirmation controversy. The justices reheard the case in January.

Today they broke along ideological lines in their 5-4 ruling.

Kavanaugh’s vote to reverse the more than 30-year-old embattled precedent could foretell how he’ll view requests to overturn more controversial ones, including those dealing with abortion.

Jim Burling, whose libertarian organization, Pacific Legal Foundation, brought the challenge on behalf of a Pennsylvania landowner, welcomed the ruling but also recognized “the elephant in the room—and that is Roe v. Wade,” the court’s landmark abortion ruling.

“The lengthier-than-usual discussions of stare decisis towards the end of this term could very well be some opening salvos in future challenges to Roe,” Burling said. Still, he cautioned about reading too much into the court’s decision to overturn the property ruling.

Brian Fallon of the progressive group Demand Justice said the decision is the latest in “the Republican justices’ pattern of overturning past rulings simply because they believe they were wrongly decided.”

It’s the second time the court has overturned longstanding precedent so far this term, causing the more liberal justices in dissent to wonder what’s next.

Local Cases

Writing for the majority, Chief Justice John Roberts said the 1985 ruling placed an “unjustifiable burden” on property owners, preventing many of them from ever reaching federal court.

That’s because resolution of a state court proceeding generally precludes any federal lawsuit over the constitutional ban on government taking of private property without “just compensation,” Roberts said.

“The 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,” Roberts wrote. “The federal claim dies aborning.”

The ruling is a victory for Rose Mary Knick, a Pennsylvania woman whose rural property includes a small family graveyard. She sued the Township of Scott over an ordinance that requires cemeteries to be kept open to the public during daylight hours.

But the fight is not over, the township said in a statement provided by its attorneys.

Pennsylvania and many other states have laws that treat cemetery property differently—namely that “a person or corporation who acquires land on which gravesites have been consecrated may not simply pave them over or forbid bereaved family from visiting,” the township said.

Dissenting Justice Elena Kagan said the decision would “channel a mass of quintessentially local cases involving complex state-law issues into federal courts.”

She said the ruling “transgresses all usual principles of stare decisis,” the practice under which the court usually leaves its precedents intact.

The same conservative majority in May overturned a ruling that had let states be sued in the courts of other states. At the time, dissenting Justice Stephen Breyer said the ruling “can only cause one to wonder which cases the court will overrule next.”

Kagan picked up on that point in Friday’s case.

“Well, that didn’t take long,” she wrote. “Now one may wonder yet again.”

The case is Knick v. Twp of Scott, U.S., No. 17-647, 6/21/19.

(Updates with comments from the township.)

To contact the reporters on this story: Kimberly Strawbridge Robinson (Bloomberg Law) in Washington at; Greg Stohr (Bloomberg) in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at