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Commentary: Overrule of Roe v. Wade prefigured by Supreme Court land use decision

BridgeTower Media Newswires//September 15, 2022//

Commentary: Overrule of Roe v. Wade prefigured by Supreme Court land use decision

BridgeTower Media Newswires//September 15, 2022//

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By Edward Sullivan and Carrie Richter

BridgeTower Media Newswires

PORTLAND, OR — Whatever you think of the result in the recent Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade, the breathtaking changes wrought by the current United States Supreme Court in that case could have been anticipated by the decision in a land use case three years ago.

In Knick v. Township of Scott, Pennsylvania in 2019, the Supreme Court overturned a precedent it had itself established 34 years earlier. That case dealt with whether a landowner who claimed her property was “taken” by a local ordinance that declared her property open to the public during daytime hours because it might contain possible grave sites. The town contended, among other things, that it was merely following state law. However, the court left that point to further proceedings.

The issue in Knick was whether the precedent of a previous case, Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, was still valid under the Fifth Amendment’s “Takings Clause,” which provided that private property shall not be taken for public use without just compensation. Under Williamson County, the court determined that a takings claim could not be brought immediately in federal court, but had to first make its way through state courts. If a claimant wanted to pursue a claim to the federal court system, it could seek review of the state court decision in the U.S. Supreme Court or could bring a claim in the federal trial courts. The chances the Supreme Court might take direct discretionary review were negligible and the federal trial court most often demurred finding that the appellant had already had their day in court. Besides, litigation was expensive and time-consuming.

In Knick, the court overturned Williamson County, and concluded that the state-litigation requirement imposed an “unjustifiable burden on takings plaintiffs” — conflicting with its prior takings jurisprudence. The court’s analysis identified a series of factors that it had formulated for overturning previous precedent, including “the quality of the reasoning of the precedent, the workability of the rule it established, “its consistency with other related decisions, … and reliance on the decision.” These “factors” were not a checklist and were not given any particular weight and could thus be manipulated to justify a particular result. While conceding that stare decisis (conforming to previous precedent) counsels in favor of adhering to a previous decision despite its error, the court found that such adherence was weakest when constitutional law was involved and as such, “in most matters it is more important that the applicable rule of law be settled than that it be settled right.”

The Knick court found the deviancy from precedent to be fairly easy to be overcome. The majority opinion of Chief Justice Roberts said that Williamson County was not just wrong, but its reasoning was “exceptionally ill-founded and conflicted with much of our takings jurisprudence.” That opinion utilized selected academic and judicial criticism over its “shaky foundations” and because it allegedly frustrated takings claims so overruling Williamson County will simply allow into federal court takings claims that otherwise would have been brought as inverse condemnation suits in state court, it was appropriate to discard the precedent.

There were other cases in which the current Supreme Court used this mechanism to deal with precedents the majority found inconsistent with its views on constitutional or statutory law. The danger of the use of the mechanism is that it provides a means to manipulate the factors to reach a desired result, while using the forms of judicial review. The current Supreme Court has come down with significant decisions in privacy, religious expression, criminal law, voting rights, and COVID-related health regulations. Many of these decisions deviated from precedent and appeared to reflect a much more politically conservative view of the justices and those who had appointed them.

With this convenient, yet foundationless basis to overrule precedent, it is not surprising that the same factors were used in overruling nearly 50 years of precedent that found a constitutional right to abortion. Roe v. Wade, Dobbs v. Jackson Women’s Health Organization, and Knick v. Township of Scott, Pennsylvania all relied in substantial part, on a case that established the theory, Janus v. American Federation of State, County, and Municipal Employees, Council 31, a case handed down at the end of the 2017-18 term and authored by Justice Samuel Alito, the author of Dobbs. In Janus, the court found that a union member could successfully challenge an Illinois law that required him to subsidize a labor union if he disagreed with its positions. The court found its own 41-year-old precedent “poorly reasoned,” presented practical problems and abuse, was inconsistent with other First Amendment decisions of the court, and that unions had no “reliance interest” in the precedent.

So, in the “we should have seen this coming” department, the overruling of Roe v. Wade should have been anticipated. While all Supreme Court nominees have made ritual bows to precedent to some degree, there seems to have been much less reluctance to overrule precedents inconsistent with the ideology of the individual justices. It is certainly easy to decide a case in accordance with court precedent. But as Knick and now Dobbs have shown, it is also relatively easy to manipulate unweighted “factors” to arrive at a certain result.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at [email protected].

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or [email protected].

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