Just out of the Knick arguments. Full report to come later. But for now, these thoughts:
College of Surgeons – D.O.A. I think there’s a consensus to overrule the case to the extent it allows municipalities to remove takings cases to federal court.
San Remo – On life support. I think also that there may be enough votes to overrule the Catch-22 aspects of that case and the preclusion/full faith and credit trap.
Here’s the federal government’s position, in a nutshell:
Justice Kagan, like us, found that distinction hard to swallow.
Justice Bryer quote of the day: “why not let sleeping dogs lie?” (Asking about stare decisis.)
As for the “big” issue of whether the Court will overrule Williamson County? Too close to call. We didn’t see an obvious majority forming around anything but overruling Chicago and San Remo. No Justice seemed to like Williamson County too much (except maybe Justice Sotomayor, of course), but what the Court will do, is quite beyond us at this point.
We liked some of the questions the Justices asked because they reflected that they understood the issues, but others made us cringe.
More today, after we get back to Williamsburg, and have a chance to review the transcript.
Stay tuned.