Supreme Court justices need a healthy respect for past precedents. But sometimes, precedent is so bad it simply has to be overturned.
The court did just that last month in the case of Knick v. Township of Scott. The court delivered a victory for champions of property rights by overturning a 1985 precedent that had blocked property rights cases from federal courts.
This overturning of an older decision sparked a vigorous public debate. Two Supreme Court justices staked out opposing positions: Elena Kagan warned against a rush to overturn precedents, while Clarence Thomas suggested older decisions that are in fact wrong should be changed.
We should welcome this debate because it highlights the judiciary’s duty to correct its own mistakes and to ensure that our constitutional rights are properly and fully protected.
Yes, we should heed Kagan’s warning about the importance of respecting earlier court decisions. But Thomas’ position that bad precedents deserve to be struck down has merit, too—and the Knick case illustrates why.
I represented Rose Knick in her challenge to the Scott Township and argued her case at the Supreme Court. In that capacity, I had a front row seat to the dangers of bad precedent.
In 2012, officials from Scott Township, Pennsylvania, passed an ordinance requiring anyone with any kind of burial ground on their private land to allow the general public on the land to view the burial ground. Pennsylvania does not prohibit so-called backyard burials, so small family grave sites on private property are common.
The township then decided, without any evidence, that Knick, a 70-year-old single woman, might have some gravestones on her 90-acre farm land. It ordered her to allow anyone and everyone to walk across her land to see the alleged graves. Failure to comply would mean steep fines.
Town officials offered her no compensation for putting a public trail on her property. Knick sued, alleging they violated her constitutional right to compensation for an obvious taking of her property.
Unfortunately, she could not bring her case to federal courts because of the Supreme Court’s decision in the 1985 case Williamson Co. Regional Planning Commission v. Hamilton Bank of Johnson City. That decision effectively barred property owners—and only property owners—from enforcing their constitutional rights in a neutral federal court.
We argued that decision should be overturned because it turned property owners into second-class citizens when it comes to court access, gave the government an unfair, hometown advantage by limiting property owners to state court, and failed to take into account the importance of the constitutional right to compensation for a taking.
On June 21, a majority of the justices agreed and stuck down the older precedent, but not without a sharp disagreement about the role and importance of stare decisis, a Latin phrase that means “to stand by what has been decided.”
The concept of respecting past precedent is designed to ensure stability in the law, and that is laudable. But it was never meant to function as an insurmountable barrier to correcting past judicial mistakes.
This tension is evident in the opinions of Kagan and Thomas. Thomas’ concurring opinion argues that justices must be ready and able to nullify past decisions because their primary duty is to uphold the Constitution, not previous precedents.
“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it,” Thomas wrote. “Notably, the Constitution does not mandate that judicial officers swear to uphold judicial precedents.”
Kagan, on the other hand, warned against a cavalier approach to overturning precedent that could lead courts to smash past “legal rulings to smithereens” any time they believed them to be wrongly decided.
Thomas has the better position—at least in Knick’s case.
The Williamson County case that barred property rights claims in federal court has been criticized by lower courts and legal scholars since the day it was issued.
Other precedents may be less clear-cut, and in those instances Kagan’s warning may be better taken. But we should not allow the mere passage of time to get in the way of justice. A longstanding constitutional mistake is still a mistake, and courts should not hesitate to correct it.
In interpreting the Fifth Amendment to bar people like Knick from seeking federal court protection for their constitutional property rights, the Williamson County case was a mistake with horrendously unfair results for millions of American property owners.
The court was right to overturn it.
J. David Breemer, a senior attorney with the Pacific Legal Foundation, represented Rose Knick in her Supreme Court challenge.
This op-ed was originally published by The Daily Signal on July 30, 2019.