I'm not going to do an in-depth preview of tomorrow's Supreme Court oral arguments in Knick v. Township of Scott, No. 17-647 for several reasons.
First, a lot of others have summarized the issues already, far better than I can. See the list below.
Second, I filed an amicus brief in the case in support of Ms. Knick, and that brief pretty much sums up my thinking about the case. Williamson County ripeness is something I've railed on for a while, and there's no need for me to say it once again.
Finally, I'm attending the arguments tomorrow with my William and Mary Law class, (they get to see the sausage being made!) and am keeping my powder dry for a post-argument report from the scene.
First, the previews, followed by some brief thoughts:
- Read the merits and amici briefs (all 21 of them!) here
- Our "monkey" brief (with pics!) here
- SCOTUSblog: Overruling Williamson County in the "Knick" of time? [Barista's note: get ready for an onslaught of bad knick-of-time puns in law review titles.]
- United States Supreme Court Hears Important Takings Case (my friend Ed Sullivan, dean of the Oregon Land Use Bar, writes up his thoughts at Law of the Land blog)
- Knick v. Township of Scott (If you want the Dragnet just-the-facts preview, see LII's write up)
- Cemetery Case Could Change Path for Property Rights Claims Against Local Governments (Route Fifty quotes Brigham-Kanner prizewinner Stewart Sterk: "The big question here is: In what court system will takings claims proceed?” said Stewart Sterk, a professor and director of the Center for Real Estate Law and Policy at the Benjamin N. Cardozo School of Law at Yeshiva University in New York. “In Knick, what the plaintiffs are trying to do,” he added, “is to assure that landowners in cases like this have a forum in federal court at an earlier stage, before a state court has finally ruled on whether compensation is due and how much that compensation should be.")
- Williamson County's Cohens Problem - Georgetown Law's Least Dangerous Blog: "Per Cohens and its progeny, the Court cannot delimit the bounds of its jurisdiction more narrowly than what Article III provides, or otherwise abstain from adjudicating a justiciable cause of action arising under the Constitution, “merely because ‘prudence’ dictates.” Rather, “the courts of the United States are bound to proceed to judgment, and to afford redress to suitors before them, in every case to which their jurisdiction extends.”
- The First Mondays podcast devoted some airtime to Williamson County in its program with Professor James Stern
Some thoughts about what to look for in the arguments:
- If you don't want to read all of the amici briefs, here's our selection of the briefs to really pay attention to: brief of the United States (the Court usually pays special attention to the SG's argument, and so should you, especially when it is supporting the landowner); American Planning Association (the majority was influenced by the APA's brief in Murr, and it might be here too); Cemetery Law Scholars' brief (didn't even know that was a thing - their brief argues that because dead bodies are all over the place, an owner's right to exclude is limited by custom); Center for Constitutional Jurisprudence (focuses on text and history of takings).
- Unless you have been living in a hole these past two weeks, you know that there are only going to be eight Justices hearing arguments tomorrow. Does that raise the prospect of an affirmance by an equally divided Court? Or reargument once the Court is up to its full contingent? A DIG as the brief of the National Governors Association argues? [Barista's note: the NGA's brief is the most aggressive brief on the list in our opinion, offering full-throated support for the state of affairs and Williamson County's rationale.]
- Everyone seems to be focusing on whether Williamson County will be overruled. But might the Court leave the main rationale in that case in place, but trim around the edges by invalidating either the San Remo/full faith and credit trap, or the unequal ability of local governments to get a federal forum under College of Surgeons?
- Our biggest question: given the multi-layered arguments and the different ways that the parties and amici have framed the narrative about what a "taking" even means (see SCOTUSblog's post for the best summary of the nuances in the arguments) what is the risk the Court will hose up takings law even further?
Tomorrow will certainly be interesting. Stay tuned.