One of the major plots of the current term of the U.S. Supreme Court has been the occasional muscle-flexing by the newly consolidated majority bloc of five conservatives, and ever-increasing alarm among the four liberals that this new aggressiveness will topple SCOTUS precedents involving important issues. Justice Stephen Breyer voiced this fear last month in a dissent to the majority’s reversal of a longstanding precedent involving sovereign immunity, worrying that the “decision can only cause one to wonder which cases the Court will overrule next.” Today, Justice Elena Kagan added her fears as the majority overturned an old precedent about challenges to federal “takings” by affected property-holders:
Today, the Court formally overrules Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985). But its decision rejects far more than that single case. Williamson County was rooted in an understanding of the Fifth Amendment’s Takings Clause stretching back to the late 1800s. On that view, a government could take property so long as it provided a reliable mechanism to pay just compensation, even if the payment came after the fact. No longer. The majority today holds, in conflict with precedent after precedent, that a government violates the Constitution whenever it takes property without advance compensation—no matter how good its commitment to pay. That conclusion has no basis in the Takings Clause. Its consequence is to channel a mass of quintessentially local cases involving complex state-law issues into federal courts. And it transgresses all usual principles of stare decisis.
Stare decisis is the doctrine of deferring to precedent to the maximum extent possible with justice and reason.
As Robert Barnes pointed out, the precedent the Supreme Court overturned today has long been a target of the conservative legal movement. But so, too, has Roe v. Wade, the 1973 decision acknowledging a federal constitutional right to an abortion, and the precedent so many people hope or fear will be next on the chopping block.
Both Breyer and Kagan have had reason to be concerned about the identity of the author of the majority opinion in the cases that generate their protests. In Franchise Tax Board of California v. Hyatt, the sovereign immunity case, the contemptuous dismissal of precedent was penned by Clarence Thomas, who happens to be the justice most openly hostile to Roe. And in the latest case, Knick v. Township of Scott, the transgressor is Chief Justice Roberts, who is supposed to be the protector of stare decisis and of the Supreme Court’s credibility against claims that it has become politicized or captured by an ideological point of view. Perhaps because of that perceived role, Roberts defended himself against Kagan’s charge of recklessness, noting that the Court had deferred to precedent in other cases this term and today. But as he wrote in his opinion, he regarded the “takings” precedent as “exceptionally ill founded.”
And that’s exactly what the majority opinion will say about Roe should the Court’s conservatives gird up their loins to overturn it in the months and years ahead. We’ve been forewarned, twice.