With the opinion in the Knick v. Township of Scott case to drop as soon as Tuesday (we're guessing the opinion will be by Chief Justice Roberts, by the way), hold on: we're about to get super nerdy here. Impossibly nerdy. Yes, we're revisiting the Star Trek analogies. We've been down this road before, even going so far as to have a colleague (who is perhaps even further down the rabbit hole than we are) present a takings CLE in his Starfleet uniform.
The bottom line is this (and if you are not into Trek, you can stop right here): to us the key question which the Court is grappling with is whether a state's judiciary is part of the state's compensation system. If the majority of the justices conclude that it is, then don't expect an out-and-out overruling of Williamson County, only a modest trim around the edges, with some of the more obvious inequities (the Chicago Surgeons removal imbalance, and maybe the San Remo trap) eliminated.
Yeah, but what about Star Trek?
This time, we're not talking Klingon foreheads and makeup budgets in the 1960's TV show. Instead, we're jumping forward one series to one of The Next Generation's seminal episodes, "Darmok," which Wikipedia describes as dramatizing "an incident in which the crew of the Enterprise is unable to establish meaningful communication with the crew of an alien vessel, which is resolved by the struggle of the ships' captains to defend each other from a vicious beast." Because no matter which way that Knick turns out, we're betting that the competing opinions will highlight the divide among the justices about what it means to take property, and what, if anything, courts should do about it.
The key conceit of the Darmok episode is that our heroes cannot initially communicate with the aliens (and thus cannot comprehend their intentions) because although the aliens use English words, they speak only in allegory, using shared history and myths to give the allegories meaning. They keep repeating "Shaka, when the walls fell," for example. But without an understanding of what events these words reference, the good guys hear this as jibberish, and cannot decipher the meaning. As a result, both sides end up doing what a lot of us do when faced with a language we don't understand: we repeat ourselves, only slower, thinking that will cure the problem.
It doesn't, but in the end, all is resolved when the metaphorical light bulb goes off in Captain Picard's head, and he learns to talk the talk. He starts to understand his counterpart's stories and background, and with that comes an understanding of what he's trying to communicate. "Shaka, when the walls fell" means "failure." (If you are interested in more, one of the better explanations about how this episode was a good example "of the limits of human communication" was this article in The Atlantic.)
If you are not a Trek fan, sorry for the extensive backstory, but we do have a point to all of this. Here's what you need to know: after we attended the oral (re)arguments a while back in Knick (see our after-action report here), we read the transcript and listened to the OA recording to get a better sense of what we missed in person. And we let things settle into our consciousness, meditating on what might come out of this case, both good and bad.
And the thing that jumped out at us was the above-referenced Trek episode, with each party talking past the other. There was some of that in the first argument (see our post "Oranges And Tangerines - The Difference Between Eminent Domain And Inverse Condemnation: Deconstructing The Knick Oral Arguments"), but the second time around, it seemed on a slightly different -- and even more pronounced -- wavelength. So we predict a huge conceptual gap between the majority and the dissent(s). Oh, they will agree with what is a "taking," but they won't agree when a taking becomes actionable: at the time of the taking? Or later, when compensation is fully denied?
The key point that we think they will all agree on no matter their position on the ultimate question (the "hill to die on" in the current parlance) is the notion that it is just fine with the Constitution to not pay compensation contemporaneous with the taking. After all, the federal government takes property all the time and doesn't actually pay for it until later, and that's perfectly fine to the Court as long as there are "reasonable, certain, and adequate" means for obtaining post-taking compensation, a process that (to us) every justice wants to protect no matter what (actions under the Declaration of Taking Act is one example).
Thus, the big gap that will likely divide the opinions is how to protect that concept while also getting to a sensible and equitable result. The SG offered a way out, the argument that the takings clause isn't violated by the local government merely denying compensation, but that the owner may still come to federal court to "vindicate" her right to compensation. Nuanced, but we get it. (That's where we predict CJ Roberts will come down, by the way, even if it's not the way we'd go about analyzing it.)
So we're guessing the opinions won't turn on when the Takings Clause is violated, but rather will be more about how much federalism the Court is willing to tolerate when it comes to "vindicating" a federal constitutional right. Are state courts as good at resolving state takings claims as federal courts are at dealing with federal takings claims? Which is why at the beginning of this post, we pointed to the case's lynchpin: are state courts merely part of the state's compensation mechanism, or do they have an independent role as courts to resolve whether compensation is owed?
We think the latter, which is why a majority of the Court seemed to accept this idea in the Stop the Beach case. Which is also why, with the Chief Justice likely writing the opinion, we feel pretty good.
But if you hear us muttering "Shaka, when the walls fell" when the opinion drops, you will know why.
