There are those who say that President Trump’s legacy will be the conservative judges he appointed and had confirmed to the Supreme Court. Maybe so. Here is an interesting insight into that question.
Recent decisions don’t yet support that legacy, but it is early. There was a recent decision that does indeed show the impact of conservative judges.
It is the Knick v Township of Scott case that dealt with the issue of the administration of claims seeking just compensation for government takings.
How about Knick v Township of Scott, Big Red Car?
The case was decided by a 5-4 vote with the conservatives lining up against the liberals to overrule a 1985 precedent — the Williamson County case — that had created an unworkable bit of kabuki theater if one sought to petition a court for redress of a taking — the taking of private property for the good of the public.
Here was the problem in front of the SCOTUS:
1. Williamson required a plaintiff to seek a remedy in state court before going to Federal court.
[The reason why these cases end up in Federal court is because they deal with the “Takings Clause” of the US Constitution contained in its Fifth Amendment. The arguments are really about money.]
2. If the plaintiff goes to state court and loses, he is barred from seeking redress in a Federal court.
Chief Justice Roberts described it thusly: “The takings plaintiff thus finds himself in a Catch-22: He cannot go to federal court without going to state court first; but if he goes to state court and loses, his claim will be barred in federal court.”
The SCOTUS decided that the state litigation requirement rose to impose an “…unjustifiable burden on takings plaintiffs.”
On the surface this does not seem like a difficult case to decide, does it? Seems more procedural than anything else, doesn’t it?
And yet the liberal Justices lined up behind keeping the status quo.
How about stare decisis, Big Red Car?
Ahhh, great question, dear reader, because this case overruled a thirty-four year old precedent. That case — Williamson County Regional Planning Commission v Hamilton Bank — triggered a violent discussion about the real status of stare decisis, the legal concept of “settled law.”
The dissent — the opinion written by the minority, in this case the liberals — said this, ““[T]he entire idea of stare decisis is that judges do not get to reverse a decision just because they never liked it in the first instance…” and continued “…it is hard to overstate the value, in a country like ours, of stability in the law.”
So much for stare decisis, eh?
Why is this important, Big Red Car?
Because, dear reader, this may be the real legacy of President Donald J Trump and his conservative Supreme Court appointments — the willingness to overturn settled law when that settled law is clearly wrong or poorly decided. And, yes, because they never liked it in the first place.
Of course, every Supreme Court nominee is solemnly asked during confirmation hearings, “Do you believe that Roe v Wade is settled law?” Can’t you see Senator Kamala Harris asking Brett Kavanaugh that question? Of Sen DiFi?
To which they all respond, “Yes, Senator, Roe v Wade is settled law.” [Recent nominees usually had their “eating worms” face on when answering.]
What this Knick v Township of Scott case teaches us is this — “So what?”
The Trump conservative justices are prepared to look at settled law and ask, “I know it’s settled, but is it smart/stupid?”
And, therein lies a legacy.