Today’s Supreme Court argument in Knick v. Scott Township made clear that state and local governments are playing Whack-a-Mole with private property rights. Whack-a-Mole is the arcade game in which every time a mole is whacked down, a new one pops up. At issue in Knick is whether to overturn the Court’s 1985 Williamson County decision, which held that Fifth Amendment Takings Clause claimants are generally relegated to state court.
When property rights advocates subsequently pointed out that Williamson County effectively barred property owners from ever asserting their Fifth Amendment rights, state and local governments persuaded the Court to re-interpret the nature of a Takings Clause violation (in its 2005 San Remo Hotel decision) to eliminate the no-right-to-assert problem. But when Justice Gorsuch suggested at today’s oral argument that this revised interpretation of the Takings Clause undercuts Williamson County’s rationale, the attorney for Scott Township denied the validity of the revised interpretation—in effect arguing that San Remo ought to be overruled. Continue reading “Knick v. Scott Township: Whack-a-Mole at the Supreme Court”