Knick v. Township of Scott ( 2019 )

(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
KNICK v. TOWNSHIP OF SCOTT, PENNSYLVANIA, ET
AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 17–647. Argued October 3, 2018—Reargued January 16, 2019—
Decided June 21, 2019
The Township of Scott, Pennsylvania, passed an ordinance requiring
that “[a]ll cemeteries . . . be kept open and accessible to the general
public during daylight hours.” Petitioner Rose Mary Knick, whose
90-acre rural property has a small family graveyard, was notified
that she was violating the ordinance. Knick sought declaratory and
injunctive relief in state court on the ground that the ordinance ef-
fected a taking of her property, but she did not bring an inverse con-
demnation action under state law seeking compensation. The Town-
ship responded by withdrawing the violation notice and staying
enforcement of the ordinance. Without an ongoing enforcement ac-
tion, the court held, Knick could not demonstrate the irreparable
harm necessary for equitable relief, so it declined to rule on her re-
quest. Knick then filed an action in Federal District Court under 42
U.S. C. §1983, alleging that the ordinance violated the Takings
Clause of the Fifth Amendment. The District Court dismissed her
claim under Williamson County Regional Planning Comm’n v. Ham-
ilton Bank of Johnson City, 473 U.S. 172, which held that property
owners must seek just compensation under state law in state court
before bringing a federal takings claim under §1983. The Third Cir-
cuit affirmed.
Held:
1. A government violates the Takings Clause when it takes proper-
ty without compensation, and a property owner may bring a Fifth
Amendment claim under §1983 at that time. Pp. 5–20.
(a) In Williamson County, the Court held that, as relevant here,
a property developer’s federal takings claim was “premature” because
2 KNICK v. TOWNSHIP OF SCOTT
Syllabus
he had not sought compensation through the State’s inverse condem-
nation procedure. 473 U.S., at 197. The unanticipated consequence
of this ruling was that a takings plaintiff who complied with William-
son County and brought a compensation claim in state court would—
on proceeding to federal court after the unsuccessful state claim—
have the federal claim barred because the full faith and credit statute
required the federal court to give preclusive effect to the state court’s
decision. San Remo Hotel, L. P. v. City and County of San Francisco,
545 U.S. 323, 347. Pp. 5–6.
(b) This Court has long recognized that property owners may
bring Fifth Amendment claims for compensation as soon as their
property has been taken, regardless of any other post-taking reme-
dies that may be available to the property owner. See Jacobs v. Unit-
ed States, 290 U.S. 13. The Court departed from that understanding
in Williamson County and held that a taking gives rise not to a con-
stitutional right to just compensation, but instead gives a right to a
state law procedure that will eventually result in just compensation.
Just two years after Williamson County, however, the Court returned
to its traditional understanding of the Fifth Amendment, holding
that the compensation remedy is required by the Constitution in the
event of a taking. First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, 482 U.S. 304. A property owner
acquires a right to compensation immediately upon an uncompen-
sated taking because the taking itself violates the Fifth Amendment.
See San Diego Gas & Elec. Co. v. San Diego, 450 U.S. 621, 654
(Brennan, J., dissenting). The property owner may, therefore, bring
a claim under §1983 for the deprivation of a constitutional right at
that time. Pp. 6–12.
(c) Williamson County’s understanding of the Takings Clause
was drawn from Ruckelshaus v. Monsanto Co., 467 U.S. 986, where
the plaintiff sought to enjoin a federal statute because it effected a
taking, even though the statute set up a mandatory arbitration pro-
cedure for obtaining compensation. Id., at 1018. That case does not
support Williamson County, however, because Congress—unlike the
States—is free to require plaintiffs to exhaust administrative reme-
dies before bringing constitutional claims. Williamson County also
analogized its new state-litigation requirement to federal takings
practice under the Tucker Act, but a claim for just compensation
brought under the Tucker Act is not a prerequisite to a Fifth
Amendment takings claim—it is a Fifth Amendment takings claim.
Williamson County also looked to Parratt v. Taylor, 451 U.S. 527.
But Parratt was not a takings case at all, and the analogy from the
due process context to the takings context is strained. The poor rea-
soning of Williamson County may be partially explained by the cir-
Cite as: 588 U. S. ____ (2019) 3
Syllabus
cumstances in which the state-litigation issue reached the Court,
which may not have permitted the Court to adequately test the logic
of the state-litigation requirement or consider its implications.
Pp. 12–16.
(d) Respondents read too broadly statements in prior opinions
that the Takings Clause “does not provide or require that compensa-
tion shall be actually paid in advance of the occupancy of the land to
be taken. But the owner is entitled to reasonable, certain and ade-
quate provision for obtaining compensation” after a taking. Cherokee
Nation v. Southern Kansas R. Co., 135 U.S. 641, 659. Those state-
ments concerned requests for injunctive relief, and the availability of
subsequent compensation meant that such an equitable remedy was
not available. Simply because the property owner was not entitled to
injunctive relief at the time of the taking does not mean there was no
violation of the Takings Clause at that time. The history of takings
litigation provides valuable context. At the time of the founding,
there usually was no compensation remedy available to property
owners, who could obtain only retrospective damages, as well as an
injunction ejecting the government from the property going forward.
But in the 1870s, as state courts began to recognize implied rights of
action for damages under the state equivalents of the Takings
Clause, they declined to grant injunctions because property owners
had an adequate remedy at law. Congress enabled property owners
to obtain compensation for takings by the Federal Government when
it passed the Tucker Act in 1887, and this Court subsequently joined
the state courts in holding that the compensation remedy is required
by the Takings Clause itself. Today, because the federal and nearly
all state governments provide just compensation remedies to proper-
ty owners who have suffered a taking, equitable relief is generally
unavailable. As long as an adequate provision for obtaining just
compensation exists, there is no basis to enjoin government action ef-
fecting a taking. Pp. 16–19.
2. The state-litigation requirement of Williamson County is over-
ruled. Several factors counsel in favor of this decision. Williamson
County was poorly reasoned and conflicts with much of the Court’s
takings jurisprudence. Because of its shaky foundations, the ra-
tionale for the state-litigation requirement has been repeatedly re-
cast by this Court and the defenders of Williamson County. The
state-litigation requirement also proved to be unworkable in practice
because the San Remo preclusion trap prevented takings plaintiffs
from ever bringing their claims in federal court, contrary to the ex-
pectations of the Williamson County Court. Finally, there are no re-
liance interests on the state-litigation requirement. As long as post-
taking compensation remedies are available, governments need not
4 KNICK v. TOWNSHIP OF SCOTT
Syllabus
fear that federal courts will invalidate their regulations as unconsti-
tutional. Pp. 20–23.
862 F.3d 310, vacated and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS,
ALITO, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J., filed a con-
curring opinion. KAGAN, J., filed a dissenting opinion, in which GINS-
BURG, BREYER, and SOTOMAYOR, JJ., joined.
Cite as: 588 U. S. ____ (2019) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–647
_________________
ROSE MARY KNICK, PETITIONER v. TOWNSHIP OF
SCOTT, PENNSYLVANIA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 21, 2019]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
The Takings Clause of the Fifth Amendment states that
“private property [shall not] be taken for public use, with-
out just compensation.” In Williamson County Regional
Planning Comm’n v. Hamilton Bank of Johnson City, 473
U.S. 172 (1985), we held that a property owner whose
property has been taken by a local government has not
suffered a violation of his Fifth Amendment rights—and
thus cannot bring a federal takings claim in federal
court—until a state court has denied his claim for just
compensation under state law.
The Williamson County Court anticipated that if the
property owner failed to secure just compensation under
state law in state court, he would be able to bring a “ripe”
federal takings claim in federal court. See id., at 194. But
as we later held in San Remo Hotel, L. P. v. City and
County of San Francisco, 545 U.S. 323 (2005), a state
court’s resolution of a claim for just compensation under
state law generally has preclusive effect in any subsequent
federal suit. The takings plaintiff thus finds himself in a
2 KNICK v. TOWNSHIP OF SCOTT
Opinion of the Court
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 federal claim
dies aborning.
The San Remo preclusion trap should tip us off that the
state-litigation requirement rests on a mistaken view of
the Fifth Amendment. The Civil Rights Act of 1871, after
all, guarantees “a federal forum for claims of unconstitu-
tional treatment at the hands of state officials,” and the
settled rule is that “exhaustion of state remedies ‘is not a
prerequisite to an action under [42 U.S. C.] §1983.’ ” Heck
v. Humphrey, 512 U.S. 477, 480 (1994) (quoting Patsy v.
Board of Regents of Fla., 457 U.S. 496, 501 (1982)). But
the guarantee of a federal forum rings hollow for takings
plaintiffs, who are forced to litigate their claims in state
court.
We now conclude that the state-litigation requirement
imposes an unjustifiable burden on takings plaintiffs,
conflicts with the rest of our takings jurisprudence, and
must be overruled. A property owner has an actionable
Fifth Amendment takings claim when the government
takes his property without paying for it. That does not
mean that the government must provide compensation in
advance of a taking or risk having its action invalidated:
So long as the property owner has some way to obtain
compensation after the fact, governments need not fear
that courts will enjoin their activities. But it does mean
that the property owner has suffered a violation of his
Fifth Amendment rights when the government takes his
property without just compensation, and therefore may
bring his claim in federal court under §1983 at that time.
I
Petitioner Rose Mary Knick owns 90 acres of land in
Scott Township, Pennsylvania, a small community just
north of Scranton. Knick lives in a single-family home on
Cite as: 588 U. S. ____ (2019) 3
Opinion of the Court
the property and uses the rest of the land as a grazing
area for horses and other farm animals. The property
includes a small graveyard where the ancestors of Knick’s
neighbors are allegedly buried. Such family cemeteries
are fairly common in Pennsylvania, where “backyard
burials” have long been permitted.
In December 2012, the Township passed an ordinance
requiring that “[a]ll cemeteries . . . be kept open and ac-
cessible to the general public during daylight hours.” The
ordinance defined a “cemetery” as “[a] place or area of
ground, whether contained on private or public property,
which has been set apart for or otherwise utilized as a
burial place for deceased human beings.” The ordinance
also authorized Township “code enforcement” officers to
“enter upon any property” to determine the existence and
location of a cemetery. App. 21–23.
In 2013, a Township officer found several grave markers
on Knick’s property and notified her that she was violating
the ordinance by failing to open the cemetery to the public
during the day. Knick responded by seeking declaratory
and injunctive relief in state court on the ground that the
ordinance effected a taking of her property. Knick did not
seek compensation for the taking by bringing an “inverse
condemnation” action under state law. Inverse condemna-
tion is “a cause of action against a governmental defend-
ant to recover the value of property which has been taken
in fact by the governmental defendant.” United States v.
Clarke, 445 U.S. 253, 257 (1980) (quoting D. Hagman,
Urban Planning and Land Development Control Law 328
(1971)). Inverse condemnation stands in contrast to direct
condemnation, in which the government initiates proceed-
ings to acquire title under its eminent domain authority.
Pennsylvania, like every other State besides Ohio, pro-
vides a state inverse condemnation action. 26 Pa. Cons.
4 KNICK v. TOWNSHIP OF SCOTT
Opinion of the Court
Stat. §502(c) (2009).1
In response to Knick’s suit, the Township withdrew the
violation notice and agreed to stay enforcement of the
ordinance during the state court proceedings. The court,
however, declined to rule on Knick’s request for declara-
tory and injunctive relief because, without an ongoing en-
forcement action, she could not demonstrate the irrepara-
ble harm necessary for equitable relief.
Knick then filed an action in Federal District Court
under 42 U.S. C. §1983, alleging that the ordinance vio-
lated the Takings Clause of the Fifth Amendment.2 The
District Court dismissed Knick’s takings claim under
Williamson County because she had not pursued an in-
verse condemnation action in state court. 2016 WL
4701549, *5–*6 (MD Pa., Sept. 8, 2016). On appeal, the
Third Circuit noted that the ordinance was “extraordinary
and constitutionally suspect,” but affirmed the District
Court in light of Williamson County. 862 F.3d 310, 314
(2017).
We granted certiorari to reconsider the holding of Wil-
liamson County that property owners must seek just
compensation under state law in state court before bring-
ing a federal takings claim under §1983. 583 U. S. ___
(2018).
——————
1A property owner in Ohio who has suffered a taking without com-
pensation must seek a writ of mandamus to compel the government to
initiate condemnation proceedings. See, e.g., State ex rel. Doner v.
Zody, 130 Ohio St. 3d 446, 2011-Ohio-6117, 958 N.E.2d 1235.
2 Section 1983 provides: “Every person who, under color of any stat-
ute, ordinance, regulation, custom, or usage, of any State or Territory
or the District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law . . . .”
Cite as: 588 U. S. ____ (2019) 5
Opinion of the Court
II
In Williamson County, a property developer brought a
takings claim under §1983 against a zoning board that
had rejected the developer’s proposal for a new subdivi-
sion. Williamson County held that the developer’s Fifth
Amendment claim was not “ripe” for two reasons. First,
the developer still had an opportunity to seek a variance
from the appeals board, so any taking was therefore not
yet final. 473 U.S., at 186–194. Knick does not question
the validity of this finality requirement, which is not at
issue here.
The second holding of Williamson County is that the
developer had no federal takings claim because he had not
sought compensation “through the procedures the State
ha[d] provided for doing so.” Id., at 194. That is the hold-
ing Knick asks us to overrule. According to the Court, “if a
State provides an adequate procedure for seeking just
compensation, the property owner cannot claim a violation
of the [Takings] Clause until it has used the procedure
and been denied just compensation.” Id., at 195. The
Court concluded that the developer’s federal takings claim
was “premature” because he had not sought compensation
through the State’s inverse condemnation procedure. Id.,
at 197.
The unanticipated consequences of this ruling were not
clear until 20 years later, when this Court decided San
Remo. In that case, the takings plaintiffs complied with
Williamson County and brought a claim for compensation
in state court. 545 U.S., at 331. The complaint made
clear that the plaintiffs sought relief only under the tak-
ings clause of the State Constitution, intending to reserve
their Fifth Amendment claim for a later federal suit if the
state suit proved unsuccessful. Id., at 331–332. When
that happened, however, and the plaintiffs proceeded to
federal court, they found that their federal claim was
barred. This Court held that the full faith and credit
6 KNICK v. TOWNSHIP OF SCOTT
Opinion of the Court
statute, 28 U.S. C. §1738, required the federal court to
give preclusive effect to the state court’s decision, blocking
any subsequent consideration of whether the plaintiff had
suffered a taking within the meaning of the Fifth Amend-
ment. 545 U.S., at 347. The adverse state court decision
that, according to Williamson County, gave rise to a ripe
federal takings claim simultaneously barred that claim,
preventing the federal court from ever considering it.
The state-litigation requirement relegates the Takings
Clause “to the status of a poor relation” among the provi-
sions of the Bill of Rights. Dolan v. City of Tigard, 512
U.S. 374, 392 (1994). Plaintiffs asserting any other con-
stitutional claim are guaranteed a federal forum under
§1983, but the state-litigation requirement “hand[s] au-
thority over federal takings claims to state courts.” San
Remo, 545 U.S., at 350 (Rehnquist, C. J., concurring in
judgment). Fidelity to the Takings Clause and our cases
construing it requires overruling Williamson County and
restoring takings claims to the full-fledged constitutional
status the Framers envisioned when they included the
Clause among the other protections in the Bill of Rights.
III
A
Contrary to Williamson County, a property owner has a
claim for a violation of the Takings Clause as soon as a
government takes his property for public use without
paying for it. The Clause provides: “[N]or shall private
property be taken for public use, without just compensa-
tion.” It does not say: “Nor shall private property be taken
for public use, without an available procedure that will
result in compensation.” If a local government takes
private property without paying for it, that government
has violated the Fifth Amendment—just as the Takings
Clause says—without regard to subsequent state court
proceedings. And the property owner may sue the gov-
Cite as: 588 U. S. ____ (2019) 7
Opinion of the Court
ernment at that time in federal court for the “deprivation”
of a right “secured by the Constitution.” 42 U.S. C. §1983.
We have long recognized that property owners may
bring Fifth Amendment claims against the Federal Gov-
ernment as soon as their property has been taken. The
Tucker Act, which provides the standard procedure for
bringing such claims, gives the Court of Federal Claims
jurisdiction to “render judgment upon any claim against
the United States founded either upon the Constitution”
or any federal law or contract for damages “in cases not
sounding in tort.” 28 U.S. C. §1491(a)(1). We have held
that “[i]f there is a taking, the claim is ‘founded upon the
Constitution’ and within the jurisdiction of the Court of
Claims to hear and determine.” United States v. Causby,
328 U.S. 256, 267 (1946). And we have explained that
“the act of taking” is the “event which gives rise to the
claim for compensation.” United States v. Dow, 357 U.S.
17, 22 (1958).
The Fifth Amendment right to full compensation arises
at the time of the taking, regardless of post-taking reme-
dies that may be available to the property owner. That
principle was confirmed in Jacobs v. United States, 290
U.S. 13 (1933), where we held that a property owner
found to have a valid takings claim is entitled to compen-
sation as if it had been “paid contemporaneously with the
taking”—that is, the compensation must generally consist
of the total value of the property when taken, plus interest
from that time. Id., at 17 (quoting Seaboard Air Line R.
Co. v. United States, 261 U.S. 299, 306 (1923)). We re-
jected the view of the lower court that a property owner is
entitled to interest only when the government provides a
particular remedy—direct condemnation proceedings—
and not when the owner brings a takings suit under the
Tucker Act. “The form of the remedy d[oes] not qualify the
right. It rest[s] upon the Fifth Amendment.” 290 U.S.,
at 16.
8 KNICK v. TOWNSHIP OF SCOTT
Opinion of the Court
Jacobs made clear that, no matter what sort of proce-
dures the government puts in place to remedy a taking, a
property owner has a Fifth Amendment entitlement to
compensation as soon as the government takes his prop-
erty without paying for it. Whether the government does
nothing, forcing the owner to bring a takings suit under
the Tucker Act, or whether it provides the owner with a
statutory compensation remedy by initiating direct con-
demnation proceedings, the owner’s claim for compensa-
tion “rest[s] upon the Fifth Amendment.”
Although Jacobs concerned a taking by the Federal
Government, the same reasoning applies to takings by the
States. The availability of any particular compensation
remedy, such as an inverse condemnation claim under
state law, cannot infringe or restrict the property owner’s
federal constitutional claim—just as the existence of a
state action for battery does not bar a Fourth Amendment
claim of excessive force. The fact that the State has pro-
vided a property owner with a procedure that may subse-
quently result in just compensation cannot deprive the
owner of his Fifth Amendment right to compensation
under the Constitution, leaving only the state law right.
And that is key because it is the existence of the Fifth
Amendment right that allows the owner to proceed directly
to federal court under §1983.
Williamson County had a different view of how the
Takings Clause works. According to Williamson County, a
taking does not give rise to a federal constitutional right to
just compensation at that time, but instead gives a right to
a state law procedure that will eventually result in just
compensation. As the Court put it, “if a State provides an
adequate procedure for seeking just compensation, the
property owner cannot claim a violation of the [Takings]
Clause until it has used the procedure and been denied
just compensation.” 473 U.S., at 195. In the absence of a
state remedy, the Fifth Amendment right to compensation
Cite as: 588 U. S. ____ (2019) 9
Opinion of the Court
would attach immediately. But, under Williamson County,
the presence of a state remedy qualifies the right,
preventing it from vesting until exhaustion of the state
procedure. That is what Jacobs confirmed could not be
done.
Just two years after Williamson County, in First Eng-
lish Evangelical Lutheran Church of Glendale v. County of
Los Angeles, 482 U.S. 304 (1987), the Court returned to
the understanding that the Fifth Amendment right to
compensation automatically arises at the time the gov-
ernment takes property without paying for it. Relying
heavily on Jacobs and other Fifth Amendment precedents
neglected by Williamson County, First English held that a
property owner is entitled to compensation for the tempo-
rary loss of his property. We explained that “government
action that works a taking of property rights necessarily
implicates the ‘constitutional obligation to pay just com-
pensation.’ ” 482 U.S., at 315. Because of “the self-
executing character” of the Takings Clause “with respect
to compensation,” a property owner has a constitutional
claim for just compensation at the time of the taking.
Ibid. (quoting 6 P. Nichols, Eminent Domain §25.41 (3d
rev. ed. 1972)). The government’s post-taking actions
(there, repeal of the challenged ordinance) cannot nullify
the property owner’s existing Fifth Amendment right:
“[W]here the government’s activities have already worked
a taking of all use of property, no subsequent action by the
government can relieve it of the duty to provide compensa-
tion.” 482 U.S., at 321.3
——————
3 First English distinguished Williamson County in a footnote, ex-
plaining that the case addressed only “whether the constitutional claim
was ripe for review” before the State denied compensation. 482 U.S.,
at 320, n. 10. But Williamson County was based on the premise that
there was no Fifth Amendment claim at all until the State denies
compensation. Having rejected that premise, First English eliminated
the rationale for the state-litigation requirement. The author of First
10 KNICK v. TOWNSHIP OF SCOTT
Opinion of the Court
In holding that a property owner acquires an irrevocable
right to just compensation immediately upon a taking,
First English adopted a position Justice Brennan had
taken in an earlier dissent. See id., at 315, 318 (quoting
and citing San Diego Gas & Elec. Co. v. San Diego, 450
U.S. 621, 654, 657 (1981) (Brennan, J., dissenting)).4 In
that opinion, Justice Brennan explained that “once there
is a ‘taking,’ compensation must be awarded” because “[a]s
soon as private property has been taken, whether through
formal condemnation proceedings, occupancy, physical
invasion, or regulation, the landowner has already suf-
fered a constitutional violation.” Id., at 654.
First English embraced that view, reaffirming that “in
the event of a taking, the compensation remedy is required
by the Constitution.” 482 U.S., at 316; see ibid., n. 9
(rejecting the view that “the Constitution does not, of its
own force, furnish a basis for a court to award money
damages against the government” (quoting Brief for United
States as Amicus Curiae 14)). Compensation under the
Takings Clause is a remedy for the “constitutional viola-
tion” that “the landowner has already suffered” at the time
of the uncompensated taking. San Diego Gas & Elec. Co.,
——————
English later recognized that it was “not clear . . . that Williamson
County was correct in demanding that . . . the claimant must seek
compensation in state court before bringing a federal takings claim in
federal court.” San Remo Hotel, L. P. v. City and County of San Fran-
cisco, 545 U.S. 323, 349 (2005) (Rehnquist, C. J., concurring in
judgment).
4 Justice Brennan was joined by Justices Stewart, Marshall, and
Powell. The majority did not disagree with Justice Brennan’s analysis
of the merits, but concluded that the Court lacked jurisdiction to
address the question presented. Justice Rehnquist, concurring on the
jurisdictional issue, noted that if he were satisfied that jurisdiction was
proper, he “would have little difficulty in agreeing with much of what is
said in the dissenting opinion.” 450 U.S., at 633–634. The Court
reached the merits of the question presented in San Diego in First
English, adopting Justice Brennan’s view in an opinion by Chief Justice
Rehnquist.
Cite as: 588 U. S. ____ (2019) 11
Opinion of the Court
450 U.S., at 654 (Brennan, J., dissenting); see First Eng-
lish, 482 U.S., at 315.
A later payment of compensation may remedy the con-
stitutional violation that occurred at the time of the tak-
ing, but that does not mean the violation never took place.
The violation is the only reason compensation was owed in
the first place. A bank robber might give the loot back,
but he still robbed the bank. The availability of a subse-
quent compensation remedy for a taking without compen-
sation no more means there never was a constitutional
violation in the first place than the availability of a dam-
ages action renders negligent conduct compliant with the
duty of care.
In sum, because a taking without compensation violates
the self-executing Fifth Amendment at the time of the
taking, the property owner can bring a federal suit at that
time. Just as someone whose property has been taken by
the Federal Government has a claim “founded . . . upon
the Constitution” that he may bring under the Tucker Act,
someone whose property has been taken by a local gov-
ernment has a claim under §1983 for a “deprivation of [a]
right[ ] . . . secured by the Constitution” that he may bring
upon the taking in federal court. The “general rule” is
that plaintiffs may bring constitutional claims under
§1983 “without first bringing any sort of state lawsuit,
even when state court actions addressing the underlying
behavior are available.” D. Dana & T. Merrill, Property:
Takings 262 (2002); see McNeese v. Board of Ed. for Com-
munity Unit School Dist. 187, 373 U.S. 668, 672 (1963)
(observing that it would defeat the purpose of §1983 “if we
held that assertion of a federal claim in a federal court
must await an attempt to vindicate the same claim in a
state court”); Monroe v. Pape, 365 U.S. 167, 183 (1961)
(“The federal remedy is supplementary to the state rem-
edy, and the latter need not be first sought and refused
before the federal one is invoked.”). This is as true for
12 KNICK v. TOWNSHIP OF SCOTT
Opinion of the Court
takings claims as for any other claim grounded in the Bill
of Rights.
B
Williamson County effectively established an exhaustion
requirement for §1983 takings claims when it held that a
property owner must pursue state procedures for obtain-
ing compensation before bringing a federal suit. But the
Court did not phrase its holding in those terms; if it had,
its error would have been clear. Instead, Williamson
County broke with the Court’s longstanding position that a
property owner has a constitutional claim to compensation
at the time the government deprives him of his property,
and held that there can be no uncompensated taking, and
thus no Fifth Amendment claim actionable under §1983,
until the property owner has tried and failed to obtain
compensation through the available state procedure.
“[U]ntil it has used the procedure and been denied just
compensation,” the property owner “ ‘has no claim against
the Government’ for a taking.” 473 U.S., at 194–195
(quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986,
1018, n. 21 (1984)).
Williamson County drew that understanding of the
Clause from Ruckelshaus v. Monsanto Co., a decision from
the prior Term. Monsanto did not involve a takings claim
for just compensation. The plaintiff there sought to enjoin
a federal statute because it effected a taking, even though
the statute set up a special arbitration procedure for
obtaining compensation, and the plaintiff could bring a
takings claim pursuant to the Tucker Act if arbitration did
not yield sufficient compensation. 467 U.S., at 1018. The
Court rejected the plaintiff ’s claim because “[e]quitable
relief is not available to enjoin an alleged taking of private
property for a public use, duly authorized by law, when a
suit for compensation can be brought against the sover-
eign subsequent to the taking.” Id., at 1016 (footnote
Cite as: 588 U. S. ____ (2019) 13
Opinion of the Court
omitted). That much is consistent with our precedent:
Equitable relief was not available because monetary relief
was under the Tucker Act.
That was enough to decide the case. But Monsanto
went on to say that if the plaintiff obtained compensation
in arbitration, then “no taking has occurred and the
[plaintiff] has no claim against the Government.” Id., at
1018, n. 21. Certainly it is correct that a fully compen-
sated plaintiff has no further claim, but that is because
the taking has been remedied by compensation, not be-
cause there was no taking in the first place. See First
English, 482 U.S., at 316, n. 9. The statute in Monsanto
simply required the plaintiff to attempt to vindicate its
claim to compensation through arbitration before proceed-
ing under the Tucker Act. The case offers no support to
Williamson County in this regard, because Congress—
unlike the States—is free to require plaintiffs to exhaust
administrative remedies before bringing constitutional
claims. See McCarthy v. Madigan, 503 U.S. 140, 144
(1992) (“Where Congress specifically mandates, exhaus-
tion is required.”).
Williamson County also relied on Monsanto when it
analogized its new state-litigation requirement to federal
takings practice, stating that “taking[s] claims against the
Federal Government are premature until the property
owner has availed itself of the process provided by the
Tucker Act.” 473 U.S., at 195. But the Court was simply
confused. A claim for just compensation brought under
the Tucker Act is not a prerequisite to a Fifth Amendment
takings claim—it is a Fifth Amendment takings claim. A
party who loses a Tucker Act suit has nowhere else to go
to seek compensation for an alleged taking.
Other than Monsanto, the principal case to which Wil-
liamson County looked was Parratt v. Taylor, 451 U.S.
527 (1981). Like Monsanto, Parratt did not involve a
takings claim for just compensation. Indeed, it was not a
14 KNICK v. TOWNSHIP OF SCOTT
Opinion of the Court
takings case at all. Parratt held that a prisoner deprived
of $23.50 worth of hobby materials by the rogue act of a
state employee could not state a due process claim if the
State provided adequate post-deprivation process. 451
U.S., at 543–544. But the analogy from the due process
context to the takings context is strained, as Williamson
County itself recognized. See 473 U.S., at 195, n. 14. It is
not even possible for a State to provide pre-deprivation
due process for the unauthorized act of a single employee.
That is quite different from the taking of property by the
government through physical invasion or a regulation that
destroys a property’s productive use.
The poor reasoning of Williamson County may be par-
tially explained by the circumstances in which the state-
litigation issue reached the Court. The Court granted
certiorari to decide whether the Fifth Amendment entitles
a property owner to just compensation when a regulation
temporarily deprives him of the use of his property. (First
English later held that the answer was yes.) As amicus
curiae in support of the local government, the United
States argued in this Court that the developer could not
state a Fifth Amendment claim because it had not pursued
an inverse condemnation suit in state court. Neither
party had raised that argument before.5 The Court then
adopted the reasoning of the Solicitor General in an alter-
native holding, even though the case could have been
resolved solely on the narrower and settled ground that no
——————
5 The Solicitor General continues this tradition here, arguing for the
first time as amicus curiae that state inverse condemnation claims
“aris[e] under” federal law and can be brought in federal court under 28
U.S. C. §1331 through the Grable doctrine. Brief for United States as
Amicus Curiae 22–24; see Grable & Sons Metal Products, Inc. v. Darue
Engineering & Mfg., 545 U.S. 308 (2005). Because we agree with the
Solicitor General’s principal contention that federal takings claims can
be brought immediately under §1983, we have no occasion to consider
his novel §1331 argument.
Cite as: 588 U. S. ____ (2019) 15
Opinion of the Court
taking had occurred because the zoning board had not yet
come to a final decision regarding the developer’s proposal.
In these circumstances, the Court may not have ade-
quately tested the logic of the state-litigation requirement
or considered its implications, most notably the preclusion
trap later sprung by San Remo. That consequence was
totally unanticipated in Williamson County.
The dissent, doing what respondents do not even dare to
attempt, defends the original rationale of Williamson
County—that there is no Fifth Amendment violation, and
thus no Fifth Amendment claim, until the government
denies the property owner compensation in a subsequent
proceeding.6 But although the dissent makes a more
thoughtful and considered argument than Williamson
County, it cannot reconcile its view with our repeated
holdings that a property owner acquires a constitutional
right to compensation at the time of the taking. See su-
pra, at 7–11. The only reason that a taking would auto-
matically entitle a property owner to the remedy of com-
pensation is that, as Justice Brennan explained, with the
uncompensated taking “the landowner has already suf-
——————
6 The dissent thinks that respondents still press this theory. Post, at
6 n. 3. But respondents instead describe Williamson County as resting
on an understanding not of the elements of a federal takings claim but
of the scope of 42 U.S. C. §1983. They even go so far as to rewrite
petitioner’s question presented in such terms. Brief for Respondents i.
For respondents, it does not matter whether a property owner has a
Fifth Amendment claim at the time of a taking. What matters is that,
in respondents’ view, no constitutional violation occurs for purposes of
§1983 until the government has subsequently denied compensation.
That characterization has no basis in the Williamson County opinion,
which did not even quote §1983 and stated that the Court’s reasoning
applied with equal force to takings by the Federal Government, not
covered by §1983. 473 U.S., at 195. Respondents’ attempt to recast
the state-litigation requirement as a §1983-specific rule fails for the
same reason as the logic of Williamson County—a property owner has a
Fifth Amendment claim for a violation of the Takings Clause as soon as
the government takes his property without paying for it.
16 KNICK v. TOWNSHIP OF SCOTT
Opinion of the Court
fered a constitutional violation.” San Diego Gas & Elec.
Co., 450 U.S., at 654 (dissenting opinion). The dissent
here provides no more reason to resist that conclusion
than did Williamson County.
C
The Court in Williamson County relied on statements in
our prior opinions that the Clause “does not provide or
require that compensation shall be actually paid in ad-
vance of the occupancy of the land to be taken. But the
owner is entitled to reasonable, certain and adequate
provision for obtaining compensation” after a taking.
Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641,
659 (1890). Respondents rely on the same cases in con-
tending that uncompensated takings for which compensa-
tion is subsequently available do not violate the Fifth
Amendment at the time of the taking. But respondents
read those statements too broadly. They concerned re-
quests for injunctive relief, and the availability of subse-
quent compensation meant that such an equitable remedy
was not available. See Regional Rail Reorganization Act
Cases, 419 U.S. 102, 107, 149 (1974) (reversing a decision
“enjoin[ing]” the enforcement of a federal statute because
“the availability of the Tucker Act guarantees an adequate
remedy at law for any taking which might occur”); Hurley
v. Kincaid, 285 U.S. 95, 99, 105 (1932) (rejecting a request
to “enjoin the carrying out of any work” on a flood control
project because the Tucker Act provided the plaintiff with
“a plain, adequate, and complete remedy at law”). Simply
because the property owner was not entitled to injunctive
relief at the time of the taking does not mean there was no
violation of the Takings Clause at that time.
The history of takings litigation provides valuable con-
text. At the time of the founding there usually was no
compensation remedy available to property owners. On
occasion, when a legislature authorized a particular gov-
Cite as: 588 U. S. ____ (2019) 17
Opinion of the Court
ernment action that took private property, it might also
create a special owner-initiated procedure for obtaining
compensation. But there were no general causes of action
through which plaintiffs could obtain compensation for
property taken for public use. Brauneis, The First Consti-
tutional Tort: The Remedial Revolution in Nineteenth-
Century State Just Compensation Law, 52 Vand. L. Rev.
57, 69–70, and n. 33 (1999).
Until the 1870s, the typical recourse of a property owner
who had suffered an uncompensated taking was to bring a
common law trespass action against the responsible corpo-
ration or government official. The official would then raise
the defense that his trespass was lawful because author-
ized by statute or ordinance, and the plaintiff would
respond that the law was unconstitutional because it
provided for a taking without just compensation. If the
plaintiff prevailed, he nonetheless had no way at common
law to obtain money damages for a permanent taking—
that is, just compensation for the total value of his prop-
erty. He could obtain only retrospective damages, as well as
an injunction ejecting the government from his property
going forward. See id., at 67–69, 97–99.
As Chancellor Kent explained when granting a property
owner equitable relief, the Takings Clause and its analogs
in state constitutions required that “a fair compensation
must, in all cases, be previously made to the individuals
affected.” Gardner v. Newburgh, 2 Johns. Ch. 162, 166
(N. Y. 1816) (emphasis added). If a government took
property without payment, a court would set aside the
taking because it violated the Constitution and order the
property restored to its owner. The Framers meant to
prohibit the Federal Government from taking property
without paying for it. Allowing the government to keep
the property pending subsequent compensation to the
owner, in proceedings that hardly existed in 1787, was not
what they envisioned.
18 KNICK v. TOWNSHIP OF SCOTT
Opinion of the Court
Antebellum courts, which had no means of compensat-
ing a property owner for his loss, had no way to redress
the violation of an owner’s Fifth Amendment rights other
than ordering the government to give him back his prop-
erty. See Callender v. Marsh, 18 Mass. 418, 430–431 (1823)
(“[I]f by virtue of any legislative act the land of any citizen
should be occupied by the public . . . , without any means
provided to indemnify the owner of the property, . . . be-
cause such a statute would be directly contrary to the
[Massachusetts takings clause]; and as no action can be
maintained against the public for damages, the only way
to secure the party in his constitutional rights would be to
declare void the public appropriation.”). But in the 1870s,
as state courts began to recognize implied rights of action
for damages under the state equivalents of the Takings
Clause, they declined to grant injunctions because prop-
erty owners had an adequate remedy at law. See, e.g., Stet-
son v. Chicago & Evanston R. Co., 75 Ill. 74, 78 (1874)
(“What injury, if any, [the property owner] has sustained,
may be compensated by damages recoverable by an action
at law.”); see also Brauneis, supra, at 97–99, 110–112. On
the federal level, Congress enabled property owners to
obtain compensation for takings in federal court when it
passed the Tucker Act in 1887, and we subsequently
joined the state courts in holding that the compensation
remedy is required by the Takings Clause itself. See First
English, 482 U.S., at 316 (collecting cases).
Today, because the federal and nearly all state govern-
ments provide just compensation remedies to property
owners who have suffered a taking, equitable relief is
generally unavailable. As long as an adequate provision
for obtaining just compensation exists, there is no basis to
enjoin the government’s action effecting a taking. But
that is because, as the Court explained in First English,
such a procedure is a remedy for a taking that violated the
Constitution, not because the availability of the procedure
Cite as: 588 U. S. ____ (2019) 19
Opinion of the Court
somehow prevented the violation from occurring in the
first place. See supra, at 9–11.7
The dissent contends that our characterization of Cher-
okee Nation effectively overrules “a hundred-plus years of
legal rulings.” Post, at 6 (opinion of KAGAN, J.). But
under today’s decision every one of the cases cited by the
dissent would come out the same way—the plaintiffs
would not be entitled to the relief they requested because
they could instead pursue a suit for compensation. The
premise of such a suit for compensation is that the prop-
erty owner has already suffered a violation of the Fifth
Amendment that may be remedied by money damages.8
* * *
We conclude that a government violates the Takings
Clause when it takes property without compensation, and
——————
7 Among the cases invoking the Cherokee Nation language that the
parties have raised, only one, Yearsley v. W. A. Ross Constr. Co., 309
U.S. 18 (1940), rejected a demand for compensation. Yearsley con-
cerned a state tort suit alleging a taking by a contractor building dikes
for the Federal Government. In ruling for the contractors, we sug-
gested that the taking did not violate the Fifth Amendment because the
property owner had the opportunity to pursue a claim for just compen-
sation under the Tucker Act. As explained, however, a claim for com-
pensation brought under the Tucker Act is a claim for a violation of the
Fifth Amendment; it does not prevent a violation from occurring.
Regardless, Yearsley was right to hold that the contractors were im-
mune from suit. Because the Tucker Act provides a complete remedy
for any taking by the Federal Government, it “excludes liability of the
Government’s representatives lawfully acting on its behalf in relation
to the taking,” barring the plaintiffs from seeking any relief from the
contractors themselves. Id., at 22.
8 The dissent also asserts that today’s ruling “betrays judicial federal-
ism.” Post, at 15. But since the Civil Rights Act of 1871, part of “judi-
cial federalism” has been the availability of a federal cause of action
when a local government violates the Constitution. 42 U.S. C. §1983.
Invoking that federal protection in the face of state action violating
the Fifth Amendment cannot properly be regarded as a betrayal of
federalism.
20 KNICK v. TOWNSHIP OF SCOTT
Opinion of the Court
that a property owner may bring a Fifth Amendment
claim under §1983 at that time. That does not as a practi-
cal matter mean that government action or regulation
may not proceed in the absence of contemporaneous com-
pensation. Given the availability of post-taking compen-
sation, barring the government from acting will ordinarily
not be appropriate. But because the violation is complete
at the time of the taking, pursuit of a remedy in federal
court need not await any subsequent state action. Tak-
ings claims against local governments should be handled
the same as other claims under the Bill of Rights. Wil-
liamson County erred in holding otherwise.
IV
The next question is whether we should overrule Wil-
liamson County, or whether stare decisis counsels in favor
of adhering to the decision, despite its error. The doctrine
of stare decisis 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.’ ” Agostini v. Felton,
521 U.S. 203, 235 (1997) (quoting Burnet v. Coronado Oil
& Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissent-
ing)). The doctrine “is at its weakest when we interpret
the Constitution,” as we did in Williamson County, be-
cause only this Court or a constitutional amendment can
alter our holdings. Agostini, 521 U.S., at 235.
We have identified several factors to consider in decid-
ing whether to overrule a past decision, including “the
quality of [its] reasoning, the workability of the rule it
established, its consistency with other related decisions,
. . . and reliance on the decision.” Janus v. State, County,
and Municipal Employees, 585 U. S. ___, ___–___ (2018)
(slip op., at 34–35). All of these factors counsel in favor of
overruling Williamson County.
Williamson County was not just wrong. Its reasoning
was exceptionally ill founded and conflicted with much of
Cite as: 588 U. S. ____ (2019) 21
Opinion of the Court
our takings jurisprudence. See supra, at 12–14. Its key
conclusion, which it drew from unnecessary language in
Monsanto—that a property owner does not have a ripe
federal takings claim until he has unsuccessfully pursued
an initial state law claim for just compensation—ignored
Jacobs and many subsequent decisions holding that a
property owner acquires a Fifth Amendment right to
compensation at the time of a taking. This contradiction
was on stark display just two years later in First English.
The decision has come in for repeated criticism over the
years from Justices of this Court and many respected
commentators. See San Remo, 545 U.S., at 348
(Rehnquist, C. J., joined by O’Connor, Kennedy, and
THOMAS, JJ., concurring in judgment); Arrigoni Enter-
prises, LLC v. Durham, 578 U. S. ___ (2016) (THOMAS, J.,
joined by Kennedy, J., dissenting from denial of certiorari);
Merrill, Anticipatory Remedies for Takings, 128 Harv. L.
Rev. 1630, 1647–1649 (2015); McConnell, Horne and the
Normalization of Takings Litigation: A Response to Pro-
fessor Echeverria, 43 Env. L. Rep. 10749, 10751 (2013);
Friedman, Under the Law of Federal Jurisdiction: Allocat-
ing Cases Between Federal and State Courts, 104 Colum.
L. Rev. 1211, 1264 (2004); Monaghan, State Law Wrongs,
State Law Remedies, and the Fourteenth Amendment, 86
Colum. L. Rev. 979, 989 (1986). Even the academic de-
fenders of the state-litigation requirement base it on
federalism concerns (although they do not reconcile those
concerns with the settled construction of §1983) rather
than the reasoning of the opinion itself. See Echeverria,
Horne v. Department of Agriculture: An Invitation To
Reexamine “Ripeness” Doctrine in Takings Litigation, 43
Env. L. Rep. 10735, 10744 (2013); Sterk, The Demise of
Federal Takings Litigation, 48 Wm. & Mary L. Rev. 251,
288 (2006).
Because of its shaky foundations, the state-litigation
requirement has been a rule in search of a justification for
22 KNICK v. TOWNSHIP OF SCOTT
Opinion of the Court
over 30 years. We eventually abandoned the view that the
requirement is an element of a takings claim and recast it
as a “prudential” ripeness rule. See Horne v. Department
of Agriculture, 569 U.S. 513, 525–526 (2013); Suitum v.
Tahoe Regional Planning Agency, 520 U.S. 725, 733–734
(1997). No party defends that approach here. See Brief
for Respondents 37; Brief for United States as Amicus
Curiae 19–20. Respondents have taken a new tack, adopt-
ing a §1983–specific theory at which Williamson County
did not even hint. See n. 6, supra. The fact that the justi-
fication for the state-litigation requirement continues to
evolve is another factor undermining the force of stare
decisis. See Janus, 585 U. S., at ___ (slip op., at 23).
The state-litigation requirement has also proved to be
unworkable in practice. Williamson County envisioned
that takings plaintiffs would ripen their federal claims in
state court and then, if necessary, bring a federal suit
under §1983. But, as we held in San Remo, the state
court’s resolution of the plaintiff ’s inverse condemnation
claim has preclusive effect in any subsequent federal suit.
The upshot is that many takings plaintiffs never have the
opportunity to litigate in a federal forum that §1983 by its
terms seems to provide. That significant consequence was
not considered by the Court in Williamson County.
The dissent argues that our constitutional holding in
Williamson County should enjoy the “enhanced” form of
stare decisis we usually reserve for statutory decisions,
because Congress could have eliminated the San Remo
preclusion trap by amending the full faith and credit
statute. Post, at 17 (quoting Kimble v. Marvel Entertain-
ment, LLC, 578 U. S. ___, ___ (slip op., at 8)). But takings
plaintiffs, unlike plaintiffs bringing any other constitu-
tional claim, would still have been forced to pursue relief
under state law before they could bring suit in federal
court. Congress could not have lifted that unjustified
exhaustion requirement because, under Williamson County,
Cite as: 588 U. S. ____ (2019) 23
Opinion of the Court
a property owner had no federal claim until a state
court denied him compensation.
Finally, there are no reliance interests on the state-
litigation requirement. We have recognized that the force
of stare decisis is “reduced” when rules that do not “serve
as a guide to lawful behavior” are at issue. United States
v. Gaudin, 515 U.S. 506, 521 (1995); see Alleyne v. United
States, 570 U.S. 99, 119 (2013) (SOTOMAYOR, J., concur-
ring). Our holding that uncompensated takings violate
the Fifth Amendment will not expose governments to new
liability; it will simply allow into federal court takings
claims that otherwise would have been brought as inverse
condemnation suits in state court.
Governments need not fear that our holding will lead
federal courts to invalidate their regulations as unconsti-
tutional. As long as just compensation remedies are
available—as they have been for nearly 150 years—
injunctive relief will be foreclosed. For the same reason,
the Federal Government need not worry that courts will
set aside agency actions as unconstitutional under the
Administrative Procedure Act. 5 U.S. C. §706(2)(B).
Federal courts will not invalidate an otherwise lawful
uncompensated taking when the property owner can
receive complete relief through a Fifth Amendment claim
brought under the Tucker Act.
In light of all the foregoing, the dissent cannot, with
respect, fairly maintain its extreme assertions regarding
our application of the principle of stare decisis.
* * *
The state-litigation requirement of Williamson County
is overruled. A property owner may bring a takings claim
under §1983 upon the taking of his property without just
compensation by a local government. The judgment of the
United States Court of Appeals for the Third Circuit is
vacated, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Cite as: 588 U. S. ____ (2019) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–647
_________________
ROSE MARY KNICK, PETITIONER v. TOWNSHIP OF
SCOTT, PENNSYLVANIA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 21, 2019]
JUSTICE THOMAS, concurring.
The Fifth Amendment’s Takings Clause prohibits the
government from “tak[ing]” private property “without just
compensation.” The Court correctly interprets this text by
holding that a violation of this Clause occurs as soon as
the government takes property without paying for it.
The United States, by contrast, urges us not to enforce
the Takings Clause as written. It worries that requiring
payment to accompany a taking would allow courts to
enjoin or invalidate broad regulatory programs “merely”
because the program takes property without paying for it.
Brief for United States as Amicus Curiae 12. According to
the United States, “there is a ‘nearly infinite variety of
ways in which government actions or regulations can
affect property interests,’ ” and it ought to be good enough
that the government “implicitly promises to pay compen-
sation for any taking” if a property owner successfully
sues the government in court. Supplemental Letter Brief
for United States as Amicus Curiae 5 (Supp. Brief) (citing
the Tucker Act, 28 U.S. C. §1491). Government officials,
the United States contends, should be able to implement
regulatory programs “without fear” of injunction or invali-
dation under the Takings Clause, “even when” the pro-
gram is so far reaching that the officials “cannot deter-
mine whether a taking will occur.” Supp. Brief 5.
2 KNICK v. TOWNSHIP OF SCOTT
THOMAS, J., concurring
This “sue me” approach to the Takings Clause is unten-
able. The Fifth Amendment does not merely provide a
damages remedy to a property owner willing to “shoulder
the burden of securing compensation” after the govern-
ment takes property without paying for it. Arrigoni En-
terprises, LLC v. Durham, 578 U. S. ___, ___ (2016)
(THOMAS, J., dissenting from denial of certiorari) (slip op.,
at 2). Instead, it makes just compensation a “prerequisite”
to the government’s authority to “tak[e] property for public
use.” Ibid. A “purported exercise of the eminent-domain
power” is therefore “invalid” unless the government “pays
just compensation before or at the time of its taking.” Id.,
at ___ (slip op., at 3). If this requirement makes some
regulatory programs “unworkable in practice,” Supp. Brief
5, so be it—our role is to enforce the Takings Clause as
written.
Of course, as the Court correctly explains, the United
States’ concerns about injunctions may be misplaced.
Ante, at 15–18. Injunctive relief is not available when an
adequate remedy exists at law. E.g., Monsanto Co. v.
Geertson Seed Farms, 561 U.S. 139, 156 (2010). And even
when relief is appropriate for a particular plaintiff, it does
not follow that a court may enjoin or invalidate an entire
regulatory “program,” Supp. Brief 5, by granting relief
“beyond the parties to the case,” Trump v. Hawaii, 585
U. S. ___, ___ (2018) (THOMAS, J., concurring) (slip op., at
6); see id., at ___ (slip op., at 2) (expressing skepticism
about “universal injunctions”).
Still, “[w]hen the government repudiates [its] duty” to
pay just compensation, its actions “are not only unconsti-
tutional” but may be “tortious as well.” Monterey v. Del
Monte Dunes at Monterey, Ltd., 526 U.S. 687, 717 (1999)
(plurality opinion). I do not understand the Court’s opin-
ion to foreclose the application of ordinary remedial prin-
ciples to takings claims and related common-law tort
claims, such as trespass. I therefore join it in full.
Cite as: 588 U. S. ____ (2019) 1
KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–647
_________________
ROSE MARY KNICK, PETITIONER v. TOWNSHIP OF
SCOTT, PENNSYLVANIA, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 21, 2019]
JUSTICE KAGAN, with whom JUSTICE GINSBURG,
JUSTICE BREYER, and JUSTICE SOTOMAYOR join,
dissenting.
Today, the Court formally overrules Williamson County
Regional Planning Comm’n v. Hamilton Bank of Johnson
City, 473 U.S. 172 (1985). But its decision rejects far
more than that single case. Williamson County was rooted
in an understanding of the Fifth Amendment’s Takings
Clause stretching back to the late 1800s. On that view, a
government could take property so long as it provided a
reliable mechanism to pay just compensation, even if the
payment came after the fact. No longer. The majority
today holds, in conflict with precedent after precedent,
that a government violates the Constitution whenever it
takes property without advance compensation—no matter
how good its commitment to pay. That conclusion has no
basis in the Takings Clause. Its consequence is to channel
a mass of quintessentially local cases involving complex
state-law issues into federal courts. And it transgresses
all usual principles of stare decisis. I respectfully dissent.
I
Begin with the basics—the meaning of the Takings
Clause. The right that Clause confers is not to be free
from government takings of property for public purposes.
2 KNICK v. TOWNSHIP OF SCOTT
KAGAN, J., dissenting
Instead, the right is to be free from those takings when the
government fails to provide “just compensation.” In other
words, the government can take private property for pub-
lic purposes, so long as it fairly pays the property owner.
That precept, which the majority does not contest, comes
straight out of the constitutional text: “[P]rivate property
[shall not] be taken for public use, without just compensa-
tion.” Amdt. 5. “As its language indicates, [the Takings
Clause] does not prohibit the taking of private property,
but instead places a condition on the exercise of that
power.” First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, 482 U.S. 304, 314
(1987). And that constitutional choice accords with an-
cient principles about what governments do. The eminent
domain power—the capacity to “take private property for
public uses”—is an integral “attribute of sovereignty.”
Boom Co. v. Patterson, 98 U.S. 403, 406 (1879); see Kohl
v. United States, 91 U.S. 367, 371 (1876) (The power is
“essential to [the Government’s] independent existence
and perpetuity”). Small surprise, then, that the Constitu-
tion does not prohibit takings for public purposes, but only
requires the government to pay fair value.
In that way, the Takings Clause is unique among the
Bill of Rights’ guarantees. It is, for example, unlike the
Fourth Amendment’s protection against excessive force—
which the majority mistakenly proposes as an analogy.
See ante, at 8. Suppose a law enforcement officer uses
excessive force and the victim recovers damages for his
injuries. Did a constitutional violation occur? Of course.
The Constitution prohibits what the officer did; the pay-
ment of damages merely remedied the constitutional
wrong. But the Takings Clause is different because it does
not prohibit takings; to the contrary, it permits them
provided the government gives just compensation. So
when the government “takes and pays,” it is not violating
the Constitution at all. Put another way, a Takings
Cite as: 588 U. S. ____ (2019) 3
KAGAN, J., dissenting
Clause violation has two necessary elements. First, the
government must take the property. Second, it must deny
the property owner just compensation. See Horne v. De-
partment of Agriculture, 569 U.S. 513, 525–526 (2013)
(“[A] Fifth Amendment claim is premature until it is clear
that the Government has both taken property and denied
just compensation” (emphasis in original)). If the govern-
ment has not done both, no constitutional violation has
happened. All this is well-trod ground. See, e.g., United
States v. Jones, 109 U.S. 513, 518 (1883); Albert Hanson
Lumber Co. v. United States, 261 U.S. 581, 586 (1923).
Even the majority (despite its faulty analogy) does not
contest it.
Similarly well-settled—until the majority’s opinion
today—was the answer to a follow-on question: At what
point has the government denied a property owner just
compensation, so as to complete a Fifth Amendment viola-
tion? For over a hundred years, this Court held that
advance or contemporaneous payment was not required,
so long as the government had established reliable proce-
dures for an owner to later obtain just compensation (in-
cluding interest for any time elapsed). The rule got its
start in Cherokee Nation v. Southern Kansas R. Co., 135
U.S. 641 (1890), where the Tribe argued that a federal
statute authorizing condemnation of its property violated
the Fifth Amendment because the law did not require
advance payment. The Court disagreed. It held that the
Takings Clause “does not provide or require that compen-
sation shall be actually paid in advance of the occupancy
of the land to be taken” so long as the government made
available to the owner “reasonable, certain and adequate
provision for obtaining compensation” afterward. Id., at
659. Decade after decade, the Court repeated that princi-
ple.1 As another case put the point: The Takings Clause
——————
1 See also, e.g., Yearsley v. W. A. Ross Constr. Co., 309 U.S. 18, 21–22
4 KNICK v. TOWNSHIP OF SCOTT
KAGAN, J., dissenting
does not demand “that compensation should be made
previous to the taking” so long as “adequate means [are]
provided for a reasonably just and prompt ascertainment
and payment of the compensation.” Crozier v. Krupp A.
G., 224 U.S. 290, 306 (1912). And the Court also made
clear that a statute creating a right of action against the
responsible government entity generally qualified as a
constitutionally adequate compensatory mechanism. See,
e.g., Williams v. Parker, 188 U.S. 491, 502 (1903); Years-
ley v. W. A. Ross Constr. Co., 309 U.S. 18, 20–21 (1940).2
Williamson County followed from those decisions as
night the day. The case began when a local planning
commission rejected a property owner’s development
proposal. The owner chose not to seek compensation
through the procedure the State had created—an “inverse
condemnation” action against the commission. Instead,
the owner sued in federal court alleging a Takings Clause
violation under 42 U.S. C. §1983. Consistent with the
century’s worth of precedent I have recounted above, the
Court found that no Fifth Amendment violation had yet
occurred. See 473 U.S., at 195. The Court first recog-
nized that “[t]he Fifth Amendment does not proscribe the
——————
(1940); Hurley v. Kincaid, 285 U.S. 95, 104 (1932); Dohany v. Rogers,
281 U.S. 362, 365 (1930); Joslin Mfg. Co. v. Providence, 262 U.S. 668,
677 (1923); Albert Hanson Lumber Co. v. United States, 261 U.S. 581,
587 (1923); Hayes v. Port of Seattle, 251 U.S. 233, 238 (1920); Bragg v.
Weaver, 251 U.S. 57, 62 (1919); Madisonville Traction Co. v. Saint
Bernard Mining Co., 196 U.S. 239, 251–252 (1905); Williams v. Parker,
188 U.S. 491, 502 (1903); Backus v. Fort Street Union Depot Co., 169
U.S. 557, 568 (1898); Sweet v. Rechel, 159 U.S. 380, 400–402 (1895).
2 In many of these cases, the Court held as well that if payment oc-
curs later, it must include interest. See, e.g., id., at 407; Albert Hanson
Lumber Co., 261 U.S., at 586. That requirement flows from the consti-
tutional demand for “just” compensation: As one of the early cases
explained, the property owner must be placed “in as good position
pecuniarily as he would have been if his property had not been taken.”
Ibid.
Cite as: 588 U. S. ____ (2019) 5
KAGAN, J., dissenting
taking of property; it proscribes taking without just com-
pensation.” Id., at 194. Next, the Court stated (citing no
fewer than five precedents) that the Amendment does not
demand that “compensation be paid in advance of, or
contemporaneously with, the taking.” Ibid. “[A]ll that is
required,” the Court continued, is that the State have
provided “a ‘reasonable, certain and adequate provision for
obtaining compensation.’ ” Ibid. (quoting Cherokee Nation,
135 U. S., at 659). Here, the State had done so: Nothing
suggested that the inverse condemnation procedure was
inadequate. 473 U.S., at 196–197. So the property own-
er’s claim was “not yet ripe”: The owner could not “claim a
violation of the [Takings] Clause until it [had] used the
procedure and been denied.” Id., at 194–195.
So contrary to the majority’s portrayal, Williamson
County did not result from some inexplicable confusion
about “how the Takings Clause works.” Ante, at 8. Far
from it. Williamson County built on a long line of deci-
sions addressing the elements of a Takings Clause viola-
tion. The Court there said only two things remotely new.
First, the Court found that the State’s inverse condemna-
tion procedure qualified as a “reasonable, certain and
adequate” procedure. But no one in this case disputes
anything to do with that conclusion—including that the
equivalent Pennsylvania procedure here is similarly ade-
quate. Second, the Court held that a §1983 suit could not
be brought until a property owner had unsuccessfully
invoked the State’s procedure for obtaining payment. But
that was a direct function of the Court’s prior holdings.
Everyone agrees that a §1983 suit cannot be brought
before a constitutional violation has occurred. And accord-
ing to the Court’s repeated decisions, a Takings Clause
violation does not occur until an owner has used the gov-
ernment’s procedures and failed to obtain just compensa-
tion. All that Williamson County did was to put the period
on an already-completed sentence about when a takings
6 KNICK v. TOWNSHIP OF SCOTT
KAGAN, J., dissenting
claim arises.3
Today’s decision thus overthrows the Court’s long-
settled view of the Takings Clause. The majority declares,
as against a mountain of precedent, that a government
taking private property for public purposes must pay
compensation at that moment or in advance. See ante, at
6–7. If the government fails to do so, a constitutional
violation has occurred, regardless of whether “reasonable,
certain and adequate” compensatory mechanisms exist.
Cherokee Nation, 135 U.S., at 659. And regardless of how
many times this Court has said the opposite before. Un-
der cover of overruling “only” a single decision, today’s
opinion smashes a hundred-plus years of legal rulings to
smithereens.
II
So how does the majority defend taking down William-
son County and its many precursors? Its decision rests on
four ideas: a comparison between takings claims and other
constitutional claims, a resort to the Takings Clause’s
——————
3 Contraryto the majority’s description, see ante, at 15, and n. 6, the
respondents have exactly this view of Williamson County (and of the
cases preceding it). The respondents discuss (as I do, see supra, at 3–4)
the “long line of precedent” holding that “the availability of a reason-
able, certain, and adequate inverse-condemnation procedure fulfills the
duty” of a government to pay just compensation for a taking. Brief for
Respondents 22–23. The respondents then conclude (again, as I do, see
supra, at 4–6) that Williamson County “sound[ly]” and “straightfor-
wardly applied that precedent to hold that a property owner who
forgoes an available and adequate inverse-condemnation remedy has
not been deprived of any constitutional right and thus cannot proceed
under Section 1983.” Brief for Respondents 22. (Again contra the
majority, the respondents’ only theory of §1983 is the one everyone
agrees with—that a §1983 suit cannot be brought before a constitu-
tional violation has occurred.) So while I appreciate the compliment, I
cannot claim to argue anything novel or “dar[ing]” here. Ante, at 15.
My argument is the same as the respondents’, which is the same as
Williamson County’s, which is the same as all the prior precedents’.
Cite as: 588 U. S. ____ (2019) 7
KAGAN, J., dissenting
text, and theories about two lines of this Court’s prece-
dent. All are misguided. The majority uses the term
“shaky foundations.” Ante, at 21. It knows whereof it
speaks.
The first crack comes from the repeated assertion (al-
ready encountered in the majority’s Fourth Amendment
analogy, see supra, at 2) that Williamson County treats
takings claims worse than other claims founded in the Bill
of Rights. See ante, at 6, 8, 11–12, 20. That is not so. The
distinctive aspects of litigating a takings claim merely
reflect the distinctive aspects of the constitutional right.
Once again, a Fourth Amendment claim arises at the
moment a police officer uses excessive force, because the
Constitution prohibits that thing and that thing only.
(Similarly, for the majority’s other analogies, a bank rob-
ber commits his offense when he robs a bank and a tort-
feasor when he acts negligently—because that conduct,
and it alone, is what the law forbids.) Or to make the
same point a bit differently, even if a government could
compensate the victim in advance—as the majority re-
quires here—the victim would still suffer constitutional
injury when the force is used. But none of that is true of
Takings Clause violations. That kind of infringement, as
explained, is complete only after two things occur: (1) the
government takes property, and (2) it fails to pay just
compensation. See supra, at 2–3. All Williamson County
and its precursors do is recognize that fact, by saying that
a constitutional claim (and thus a §1983 suit) arises only
after the second condition is met—when the property
owner comes away from the government’s compensatory
procedure empty-handed. That is to treat the Takings
Clause exactly as its dual elements require—and because
that is so, neither worse nor better than any other right.
Second, the majority contends that its rule follows from
the constitutional text, because the Takings Clause does
not say “[n]or shall private property be taken for public
8 KNICK v. TOWNSHIP OF SCOTT
KAGAN, J., dissenting
use, without an available procedure that will result in
compensation.” Ante, at 6. There is a reason the majority
devotes only a few sentences to that argument. Because
here’s another thing the text does not say: “Nor shall
private property be taken for public use, without advance
or contemporaneous payment of just compensation, not-
withstanding ordinary procedures.” In other words, the
text no more states the majority’s rule than it does Wil-
liamson County’s (and its precursors’). As constitutional
text often is, the Takings Clause is spare. It says that a
government taking property must pay just compensa-
tion—but does not say through exactly what mechanism or
at exactly what time. That was left to be worked out,
consistent with the Clause’s (minimal) text and purpose.
And from 1890 until today, this Court worked it out Wil-
liamson County’s way, rather than the majority’s. See
supra, at 3–4. Under our caselaw, a government could use
reliable post-taking compensatory mechanisms (with
payment calculated from the taking) without violating the
Takings Clause.
Third, the majority tries to explain away that mass of
precedent, with a theory so, well, inventive that it appears
in neither the petitioner’s nor her 15-plus amici’s briefs.
Don’t read the decisions “too broadly,” the majority says.
Ante, at 16. Yes, the Court in each rejected a takings
claim, instructing the property owner to avail herself
instead of a government-created compensatory mecha-
nism. But all the Court meant (the majority says) was
that the plaintiffs had sought the wrong kind of relief:
They could not get injunctions because the available com-
pensatory procedures gave an adequate remedy at law.
The Court still believed (so says the majority) that the
cases involved constitutional violations. Or said otherwise
(again, according to the majority), the Court still under-
stood the Takings Clause to prohibit delayed payment.
Points for creativity, but that is just not what the deci-
Cite as: 588 U. S. ____ (2019) 9
KAGAN, J., dissenting
sions say. Most of the cases involved requests for injunc-
tions, but the equity/law distinction played little or no role
in our analyses. Instead, the decisions addressed directly
what the Takings Clause requires (or not). And as already
shown, supra, at 3–4, they held that the Clause does not
demand advance payment. Beginning again at the begin-
ning, Cherokee Nation decided that the Takings Clause
“does not provide or require that compensation shall be
actually paid in advance.” 135 U.S., at 659. In Backus v.
Fort Street Union Depot Co., 169 U.S. 557, 567–568
(1898), the Court declared that a property owner had no
“constitutional right to have the amount of his compensa-
tion finally determined and paid before yielding posses-
sion.” By the time of Williams v. Parker, 188 U.S., at 502,
the Court could state that “it is settled by repeated deci-
sions” that the Constitution allows the taking of property
“prior to any payment.” Similarly, in Joslin Mfg. Co. v.
Providence, 262 U.S. 668, 677 (1923), the Court noted that
“[i]t has long been settled that the taking of property . . .
need not be accompanied or preceded by payment, but that
the requirement of just compensation is satisfied when”
there is a pledge of “reasonably prompt ascertainment and
payment.” In Hurley v. Kincaid, 285 U.S. 95, 104 (1932),
the Court repeated that the “Fifth Amendment does not
entitle [a property owner] to be paid in advance of the
taking.” I could go on—there are eighty more years to
cover, and more decisions in the early years too—but by
now you probably get the idea.
Well, just one more especially good demonstration. In
Yearsley v. W. A. Ross Constr. Co., 309 U.S. 18 (1940), the
plaintiffs sought money damages for an alleged Takings
Clause violation. For that reason, the Court’s theory
about suits seeking injunctions has no possible applica-
tion. Still, the Court rejected the claim: The different
remedy requested made no difference in the result. And
yet more important: In refusing to find a Takings Clause
10 KNICK v. TOWNSHIP OF SCOTT
KAGAN, J., dissenting
violation, the Court used the exact same reasoning as it
had in all the cases requesting injunctions. Once again,
the Court did not focus on the nature of the relief sought.
It simply explained that the government had provided a
procedure for obtaining post-taking compensation—and
that was enough. “The Fifth Amendment does not entitle
him [the owner] to be paid in advance of the taking,” held
the Court, quoting the last injunction case described
above. Id., at 21 (quoting Hurley, 285 U.S., at 104; brack-
ets in original). Because the government had set up an
adequate compensatory mechanism, the taking was “within
[the government’s] constitutional power.” 309 U.S., at
22. Once again, the opposite of what the majority pro-
nounces today.4
Fourth and finally, the majority lays claim to another
line of decisions—involving the Tucker Act—but with no
greater success. The Tucker Act waives the Federal Gov-
ernment’s sovereign immunity and grants the Court of
Federal Claims jurisdiction over suits seeking compensa-
tion for takings. See 28 U.S. C. §1491(a)(1). According to
——————
4 The majority’s supposed best case to the contrary, First English
Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482
U.S. 304 (1987), is not so good, as is apparent from its express state-
ment that it accords with Williamson County. See 482 U.S., at 320,
n. 10. In First English, the Court held that a property owner was
entitled to compensation for the temporary loss of his property, occur-
ring while a (later-repealed) regulation was in effect. See id., at 321.
The Court made clear that a government’s duty to compensate for a
taking—including a temporary taking—arises from the Fifth Amend-
ment, as of course it does. See id., at 315. But the Court nowhere
suggested that a Fifth Amendment violation happens even before a
government denies the required compensation. (You will scan the
majority’s description of First English in vain for a quote to that ef-
fect—because no such quote exists. See ante, at 9–11.) To the contrary,
the Court went out of its way to recognize the Williamson County
principle that “no constitutional violation occurs until just compensa-
tion has been denied.” 482 U.S., at 320, n. 10 (internal quotation
marks omitted).
Cite as: 588 U. S. ____ (2019) 11
KAGAN, J., dissenting
the majority, this Court’s cases establish that such an
action “is a claim for a violation of the Fifth Amend-
ment”—that is, for a constitutional offense that has al-
ready happened because of the absence of advance pay-
ment. Ante, at 19, n. 7 (emphasis in original); see ante,
at 13. But again, the precedents say the opposite. The
Tucker Act is the Federal Government’s equivalent of a
State’s inverse condemnation procedure, by which a prop-
erty owner can obtain just compensation. The former, no
less than the latter, forestalls any constitutional violation
by ensuring that an owner gets full and fair payment for a
taking. The Court, for example, stated in United States v.
Riverside Bayview Homes, Inc., 474 U.S. 121, 128 (1985),
that “so long as [post-taking Tucker Act] compensation is
available for those whose property is in fact taken, the
governmental action is not unconstitutional.” Similarly,
we held in Preseault v. ICC, 494 U.S. 1, 4–5 (1990) that
when “compensation is available to [property owners]
under the Tucker Act[,] the requirements of the Fifth
Amendment are satisfied.” And again, in Ruckelshaus v.
Monsanto Co., 467 U.S. 986, 1016 (1984) we rejected a
takings claim because the plaintiff could “seek just com-
pensation under the Tucker Act” and “[t]he Fifth Amend-
ment does not require that compensation precede the
taking.” All those decisions (and there are others) rested
on the premise, merely reiterated in Williamson County,
that the “availability of a suit for compensation against
the sovereign will defeat a contention that the action is
unconstitutional as a violation of the Fifth Amendment.”
Larson v. Domestic and Foreign Commerce Corp., 337
U.S. 682, 697, n. 18 (1949).5
——————
5 Jacobs v. United States, 290 U.S. 13 (1933), the Tucker Act case the
majority cites to support its argument, says nothing different. The
majority twice notes Jacobs’ statement that a Tucker Act claim “rest[s]
upon the Fifth Amendment.” Ante, at 7–8 (quoting 290 U.S., at 16).
And so it does, because the compensatory obligation that the Tucker
12 KNICK v. TOWNSHIP OF SCOTT
KAGAN, J., dissenting
To the extent it deals with these cases (mostly, it just
ignores them), the majority says only that they (like Wil-
liamson County) were “confused” or wrong. See ante, at
13, 19, n. 7. But maybe the majority should take the hint:
When a theory requires declaring precedent after prece-
dent after precedent wrong, that’s a sign the theory itself
may be wrong. The majority’s theory is just that.
III
And not only wrong on prior law. The majority’s over-
ruling of Williamson County will have two damaging
consequences. It will inevitably turn even well-meaning
government officials into lawbreakers. And it will subvert
important principles of judicial federalism.
To begin with, today’s decision means that government
regulators will often have no way to avoid violating the
Constitution. There are a “nearly infinite variety of ways”
for regulations to “affect property interests.” Arkansas
Game and Fish Comm’n v. United States, 568 U.S. 23, 31
(2012). And under modern takings law, there is “no magic
formula” to determine “whether a given government inter-
ference with property is a taking.” Ibid. For that reason,
a government actor usually cannot know in advance
whether implementing a regulatory program will effect a
taking, much less of whose property. Until today, such an
official could do his work without fear of wrongdoing, in
any jurisdiction that had set up a reliable means for prop-
erty owners to obtain compensation. Even if some regula-
tory action turned out to take someone’s property, the
official would not have violated the Constitution. But no
longer. Now, when a government undertakes land-use
——————
Act vindicates arises from—or “rests upon”—the Fifth Amendment.
But that is a far cry from saying, as the majority does, that the
Government has already violated the Fifth Amendment when the
Tucker Act claim is brought—before the Government has denied fair
compensation.
Cite as: 588 U. S. ____ (2019) 13
KAGAN, J., dissenting
regulation (and what government doesn’t?), the responsi-
ble employees will almost inescapably become constitu-
tional malefactors. That is not a fair position in which to
place persons carrying out their governmental duties.
Still more important, the majority’s ruling channels to
federal courts a (potentially massive) set of cases that
more properly belongs, at least in the first instance, in
state courts—where Williamson County put them. The
regulation of land use, this Court has stated, is “perhaps
the quintessential state activity.” FERC v. Mississippi,
456 U.S. 742, 768, n. 30 (1982). And a claim that a land-
use regulation violates the Takings Clause usually turns
on state-law issues. In that respect, takings claims have
little in common with other constitutional challenges. The
question in takings cases is not merely whether a given
state action meets federal constitutional standards. Be-
fore those standards can come into play, a court must
typically decide whether, under state law, the plaintiff has
a property interest in the thing regulated. See Phillips v.
Washington Legal Foundation, 524 U.S. 156, 164 (1998);
see also Sterk, The Demise of Federal Takings Litigation,
48 Wm. & Mary L. Rev. 251, 288 (2006) (“[I]f background
state law did not recognize or create property in the first
instance, then a subsequent state action cannot take
property”). Often those questions—how does pre-existing
state law define the property right?; what interests does
that law grant?; and conversely what interests does it
deny?—are nuanced and complicated. And not a one of
them is familiar to federal courts.
This case highlights the difficulty. The ultimate consti-
tutional question here is: Did Scott Township’s cemetery
ordinance “go[] too far” (in Justice Holmes’s phrase), so as
to effect a taking of Rose Mary Knick’s property? Pennsyl-
vania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). But
to answer that question, it is first necessary to address an
issue about background state law. In the Township’s view,
14 KNICK v. TOWNSHIP OF SCOTT
KAGAN, J., dissenting
the ordinance did little more than codify Pennsylvania
common law, which (the Township says) has long required
property owners to make land containing human remains
open to the public. See Brief for Respondents 48; Brief for
Cemetery Law Scholars as Amici Curiae 6–26. If the
Township is right on that state-law question, Knick’s
constitutional claim will fail: The ordinance, on that ac-
count, didn’t go far at all. But Knick contends that no
common law rule of that kind exists in Pennsylvania. See
Reply Brief 22. And if she is right, her takings claim may
yet have legs. But is she? Or is the Township? I confess:
I don’t know. Nor, I would venture, do my colleagues on
the federal bench. But under today’s decision, it will be
the Federal District Court for the Middle District of Penn-
sylvania that will have to resolve this question of local
cemetery law.
And if the majority thinks this case is an outlier, it’s
dead wrong; indeed, this case will be easier than many.
Take Lucas v. South Carolina Coastal Council, 505 U.S.
1003 (1992). There, this Court held that a South Carolina
ban on development of beachfront property worked a
taking of the plaintiff ’s land—unless the State’s nuisance
law already prohibited such development. See id., at
1027–1030. The Court then—quite sensibly—remanded
the case to the South Carolina Supreme Court to resolve
that question. See id., at 1031–1032. (And while spotting
the nuisance issue, the Court may have overlooked other
state-law constraints on development. In some States, for
example, the public trust doctrine or public prescriptive
easements limit the development of beachfront land. See
Sterk, The Federalist Dimension of Regulatory Takings
Jurisprudence, 114 Yale L. J. 203, 227 (2004).) Or consider
Stop the Beach Renourishment, Inc. v. Florida Dept. of
Environmental Protection, 560 U.S. 702 (2010). The
federal constitutional issue there was whether a decision
of the Florida Supreme Court relating to beachfront prop-
Cite as: 588 U. S. ____ (2019) 15
KAGAN, J., dissenting
erty constituted a taking. To resolve that issue, though,
the Court first had to address whether, under pre-existing
Florida property law, “littoral-property owners had rights
to future accretions and contact with the water superior to
the State’s right to fill in its submerged land.” Id., at 730.
The Court bit the bullet and decided that issue itself, as it
sometimes has to (though thankfully with the benefit of a
state high court’s reasoning). But there is no such necessity
here—and no excuse for making complex state-law
issues part of the daily diet of federal district courts.
State courts are—or at any rate, are supposed to be—
the “ultimate expositors of state law.” Mullaney v. Wilbur,
421 U.S. 684, 691 (1975). The corollary is that federal
courts should refrain whenever possible from deciding
novel or difficult state-law questions. That stance, as this
Court has long understood, respects the “rightful inde-
pendence of the state governments,” “avoid[s] needless
friction with state policies,” and promotes “harmonious
relation[s] between state and federal authority.” Railroad
Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 500–501
(1941). For that reason, this Court has promoted practices
of certification and abstention to put difficult state-law
issues in state judges’ hands. See, e.g., Arizonans for
Official English v. Arizona, 520 U.S. 43, 77 (1997) (en-
couraging certification of “novel or unsettled questions of
state law” to “hel[p] build a cooperative judicial federal-
ism”); Louisiana Power & Light Co. v. City of Thibodaux,
360 U.S. 25, 28 (1959) (approving federal-court abstention
in an eminent domain proceeding because such cases “turn
on legislation with much local variation interpreted in
local settings”). We may as well not have bothered. To-
day’s decision sends a flood of complex state-law issues to
federal courts. It makes federal courts a principal player
in local and state land-use disputes. It betrays judicial
federalism.
16 KNICK v. TOWNSHIP OF SCOTT
KAGAN, J., dissenting
IV
Everything said above aside, Williamson County should
stay on the books because of stare decisis. Adherence to
precedent is “a foundation stone of the rule of law.” Mich-
igan v. Bay Mills Indian Community, 572 U.S. 782, 798
(2014). “[I]t promotes the evenhanded, predictable, and
consistent development of legal principles, fosters reliance
on judicial decisions, and contributes to the actual and
perceived integrity of the judicial process.” Payne v. Ten-
nessee, 501 U.S. 808, 827 (1991). Stare decisis, of course,
is “not an inexorable command.” Id., at 828. But it is not
enough that five Justices believe a precedent wrong.
Reversing course demands a “special justification—over
and above the belief that the precedent was wrongly de-
cided.” Kimble v. Marvel Entertainment, LLC, 576 U. S.
___, ___ (2015) (slip op., at 8) (internal quotation marks
omitted). The majority offers no reason that qualifies.
In its only real stab at a special justification, the major-
ity focuses on what it calls the “San Remo preclusion trap.”
Ante, at 2. As the majority notes, this Court held in a
post-Williamson County decision interpreting the full faith
and credit statute, 28 U.S. C. §1738, that a state court’s
resolution of an inverse condemnation proceeding has
preclusive effect in a later federal suit. See San Remo
Hotel, L. P. v. City and County of San Francisco, 545 U.S.
323 (2005); ante, at 1–2, 5–6, 22. The interaction between
San Remo and Williamson County means that “many
takings plaintiffs never have the opportunity to litigate in
a federal forum.” Ante, at 22. According to the majority,
that unanticipated result makes Williamson County itself
“unworkable.” Ibid.
But in highlighting the preclusion concern, the majority
only adds to the case for respecting stare decisis—because
that issue can always be addressed by Congress. When
“correction can be had by legislation,” Justice Brandeis
once stated, the Court should let stand even “error[s on]
Cite as: 588 U. S. ____ (2019) 17
KAGAN, J., dissenting
matter[s] of serious concern.” Square D Co. v. Niagara
Frontier Tariff Bureau, Inc., 476 U.S. 409, 424 (1986)
(quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393,
406 (1932) (dissenting)). Or otherwise said, stare decisis
then “carries enhanced force.” Kimble, 576 U. S., at ___
(slip op., at 8); see South Dakota v. Wayfair, Inc., 585 U. S.
___, ___ (2018) (ROBERTS, C. J., dissenting) (slip op., at 2)
(The stare decisis “bar is even higher” when Congress “can,
if it wishes, override this Court’s decisions with contrary
legislation”). Here, Congress can reverse the San Remo
preclusion rule any time it wants, and thus give property
owners an opportunity—after a state-court proceeding—to
litigate in federal court. The San Remo decision, as noted
above, interpreted the federal full faith and credit statute;
Congress need only add a provision to that law to flip the
Court’s result. In fact, Congress has already considered
proposals responding to San Remo—though so far to no
avail. See Brief for Congressman Steve King et al. as
Amici Curiae 7. Following this Court’s normal rules of
practice means leaving the San Remo “ball[ in] Congress’s
court,” so that branch can decide whether to pick it up.
Kimble, 576 U. S., at ___ (slip op., at 8).6
And the majority has no other special justification. It
says Williamson County did not create “reliance interests.”
Ante, at 23. But even if so, those interests are a plus-
factor in the doctrine; when they exist, stare decisis be-
comes “superpowered.” Kimble, 576 U. S., at ___ (slip op.,
at 10); Payne, 501 U.S., at 828 (Stare decisis concerns are
“at their acme” when “reliance interests are involved”).
The absence of reliance is not itself a reason for overruling
——————
6 Confronted with that point, the majority shifts ground. It notes that
even if Congress eliminated the San Remo rule, takings plaintiffs
would still have to comply with Williamson County’s “unjustified”
demand that they bring suit in state court first. See ante, at 22. But
that argument does not even purport to state a special justification. It
merely reiterates the majority’s view on the merits.
18 KNICK v. TOWNSHIP OF SCOTT
KAGAN, J., dissenting
a decision. Next, the majority says that the “justification
for [Williamson County’s] state-litigation requirement” has
“evolve[d].” Ante, at 22. But to start with, it has not. The
original rationale—in the majority’s words, that the re-
quirement “is an element of a takings claim,” ante, at 22—
has held strong for 35 years (including in the cases the
majority cites), and is the same one I rely on today. See,
e.g., Horne, 569 U.S., at 525–526 (quoting Williamson
County’s rationale); Suitum v. Tahoe Regional Planning
Agency, 520 U.S. 725, 734 (1997) (same); supra, at 2–3.
And anyway, “evolution” in the way a decision is described
has never been a ground for abandoning stare decisis.
Here, the majority’s only citation is to last Term’s decision
overruling a 40-year-old precedent. See ante, at 22 (citing
Janus v. State, County, and Municipal Employees, 585
U. S. ___, ___ (2018) (slip op., at 23)). If that is the way
the majority means to proceed—relying on one subversion
of stare decisis to support another—we may as well not
have principles about precedents at all.
What is left is simply the majority’s view that William-
son County was wrong. The majority repurposes all its
merits arguments—all its claims that Williamson County
was “ill founded”—to justify its overruling. Ante, at 20–21.
But the 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. Once again, they need a reason other than
the idea “that the precedent was wrongly decided.” Halli-
burton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266
(2014); see supra, at 16. For it is hard to overstate the
value, in a country like ours, of stability in the law.
Just last month, when the Court overturned another
longstanding precedent, JUSTICE BREYER penned a dis-
sent. See Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S.
___, ___ (2019). He wrote of the dangers of reversing legal
course “only because five Members of a later Court” decide
that an earlier ruling was incorrect. Id., at ___ (slip op., at
Cite as: 588 U. S. ____ (2019) 19
KAGAN, J., dissenting
13). He concluded: “Today’s decision can only cause one to
wonder which cases the Court will overrule next.” Ibid.
Well, that didn’t take long. Now one may wonder yet
again.