Justices Breyer, Sotomayor, Kagan, and Ginsburg have repeatedly decried what they view as their colleagues’ inadequate respect for precedent during the Supreme Court’s October Term 2018. Justice Breyer last month wisely cautioned the Court about the dangers of reversing legal course “only because five Members of a later Court” decide that an earlier ruling was incorrect. But Justice Kagan’s vitriolic dissent last Friday in Knick v. Township of Scott was far wide of the mark when it lambasted the Court’s decision to overrule the oft-criticized Williamson County Planning v. Hamilton Bank decision. None of the factors cited as reasons to respect precedent apply to Williamson County. Justice Kagan’s harsh language may have been designed to induce cautious justices to be more reluctant to consider overruling other precedents, but it had little relevance to the case before the Court.

How Much Should Precedent Matter?

The Supreme Court has long accepted the doctrine of stare decisis, which counsels courts in most instances to adhere to a prior decision, despite its errors. The doctrine reflects a judgment that in most matters it is more important that the applicable rule of law be settled than that it be settled right.

The Court traditionally examines several factors in deciding whether to overrule a precedent that it concludes was wrongly decided. Among the factors: (1) did the precedent interpret a statute or the Constitution (the court is less likely to overturn a statutory precedent, because if the interpretation was incorrect, Congress can amend the statute); (2) the quality of the precedent’s reasoning; (3) the workability of the rule it established; (4) its consistency with other related decisions; and (5) reliance on the decision.

Writing for the Court in Knick, Chief Justice Roberts carefully considered each of those factors, and concluded, “All of these factors counsel in favor of overruling Williamson County.” Critics, of course, are entitled to take issue with Roberts’s analysis, but they cannot contend that the Court acted without considering all countervailing arguments for adhering to precedent.

The Williamson County Rule

The Fifth Amendment prohibits the government from “taking” private property without providing “just compensation.” At issue in 1985’s Williamson County was whether a property owner may sue in federal court if he believes that a local government’s regulation of his property amounts to an uncompensated taking. The Court noted that no Fifth Amendment violation can occur until the government has denied compensation, and it held that no denial has occurred even if government officials refuse compensation, so long as the property owner can seek compensation in state court.

In other words, no “taking” occurs until, after many years of litigation, the state court finally rules against the property owner. So the Court held that property owners may not sue in federal court until after they have sued and lost in state court—virtually the only class of claimants asserting violation of a federal constitutional right that is denied a federal forum.

Williamson County was heavily criticized throughout its 34-year history. Among other things, its assumption that property owners would eventually be able to bring their claims to federal court turned out to be mistaken. As the Court later determined in a 2005 decision, issue-preclusion rules bar property owners who have litigated and lost a state-law inverse-condemnation claim in state court from asserting a Takings Clause claim in federal court. Concurring with that 2005 judgment on behalf of himself and three other justices, Chief Justice Rehnquist conceded that his Williamson County opinion had not stood the test of time and recommended that the Court reconsider it.

Knick Overrules Williamson County

Friday’s Knick decision explained why Williamson County was wrongly decided.  Indeed, Chief Justice Robert said that “its reasoning was exceptionally ill founded and conflicted with much of our taking jurisprudence.”  But he also detailed at length why the doctrine of stare decisis did not counsel adherence to Williamson County.  Chief among his reasons: as noted above, it unintentionally barred Taking Clause claimants from ever bringing their claims against local governments to federal court.

Justice Kagan’s dissent disputed the majority’s analysis, labeling the Court’s opinion a “subversion of stare decisis” and complaining that “if that is the way the majority means to proceed … we may as well not have principles about precedents at all.” But she had no real response to the undisputed evidence that Williamson County had been premised on a mistaken belief that its rule would merely delay entry into federal court, not totally bar it. The best she could come up with was that Congress could re-open the federal courthouse door by legislatively overruling normally applicable issue-preclusion rules. That’s certainly a novel principle: the Court should ignore that its erroneous interpretation of the Fifth Amendment is causing an unanticipated but acknowledged injustice for an entire class of litigants because Congress has the power to correct the injustice created by the Court. Not surprisingly, Justice Kagan cites no precedents of her own for that proposition.

Moreover, as Justice Kagan concedes, overruling Williamson County does not upset any reliance interests. Governments will not be exposed to new, unanticipated liability; they will simply face claims in a new forum. Back-tracking from her endorsement of reliance (in prior decisions for the Court) as an important factor in determining whether to adhere to precedent, she stated, “The absence of reliance is not itself a reason for overruling a decision.” But, of course, absence of reliance is only one of many reasons cited by Chief Justice Roberts for not adhering to a precedent determined by the majority to be “exceptionally ill founded.”

Are Property Rights Second-Class Constitutional Rights?

Underlying Justice Kagan’s dissent, as well as dissents in other recent Takings Clause cases, is an apparent policy judgment that property rights are not entitled to the same level of protection afforded to other rights enumerated in the Bill of Rights. That policy judgment is most evident in what she describes as a “damaging consequence” of overruling Williamson County: “it will inevitably turn even well-meaning government officials into lawbreakers.”

In the past, government officials could go about their business of imposing restrictions on private property uses, secure in the knowledge that their actions would virtually never be deemed a constitutional violation. Inverse-condemnation claims would be shunted to state court, and the worst that could happen was that the property owner would be awarded “just compensation” under state law (after years of litigation). But now, Justice Kagan laments, governments that impose property restrictions in a good-faith (but mistaken) belief that no compensation to property owners is required will be called out for having violated the Constitution.

But that lament fails to explain why Takings Clause claims should be treated any differently from claims arising under other provisions of the Constitution. Federal courts routinely determine that local governments have violated First Amendment rights when they, for example, adopt good-faith policies designed to limit permissible locations for public gatherings. They routinely hold local governments responsible for Fourth Amendment violations committed by government officials acting in good faith. There is no reason to hold governments to less exacting standards for taking private property without just compensation—unless one believes that Fifth Amendment property rights are less worthy of protection by the federal courts.

The Fifth Amendment bars the taking of private property “without just compensation.” The most natural reading of that provision is that just compensation has been denied unless it is paid roughly contemporaneously with the taking. It certainly does not contemplate that the government can delay compensation for years on end while forcing property owners to endure lengthy state-court litigation, yet still claim to have complied with the Constitution. Williamson County’s rejection of a straightforward reading of the constitutional text ignored the Court’s takings jurisprudence, proved unworkable in practice, and created no reliance interests.  The decision to overrule Williamson County is no proper cause for concern among proponents of stare decisis.

Also published by Forbes.com on WLF’s contributor page.