The National Law Journal - 'Knick'-Picking: Why a Recent Scotus Ruling Signals a New Day

Op-Ed

By Sheldon Whitehouse

For years, back to when I argued the U.S. Supreme Court case Palazzolo v. Rhode Island as Rhode Island's attorney general, big-money developers and regulated industries and the lawyer groups that front for them have been trying to turn the Constitution's takings clause into a weapon against the government. The court's decision in Knick v. Township of Scott just gave them a big prize--and showed how much control those interests now have.

At first glance, the facts in Knick are unremarkable: a parochial dispute between a landowner and a local government over daytime public access to a cemetery. But pull back the curtain and you see this case on a much bigger chessboard.

The legal issue in Knick is whether states and local courts ought to have first say in disputes over "just compensation" for landowners. Big developers and other regulated interests never liked the existing Supreme Court precedent that government could take property so long as it provided a reliable mechanism to pay just compensation, even if the payment came after the fact. That precedent meant big landowners had to fight state and local government in state courts, presumably a venue more favorable to local interests than federal courts. They would face judges and juries who cared about things such as affordable housing and environmental protection--stuff Americans want their government to do with its eminent domain power.

That is a conservative judicial value, by the way: local disputes--like the one over the graveyard in Knick--are best resolved locally. Respect for state and local rights has been enshrined in conservative judicial thought from the dawn of the republic.

With Knick, so much for that. As Justice Elena Kagan points out in her dissent, the consequence of the court's decision "is to channel a mass of quintessentially local cases involving complex state-law issues into federal courts." And by the way, awaiting state and local governments in federal court are a growing number of Trump appointees handpicked to favor corporations.

Then there's another conservative judicial principle the "Roberts Five" abandoned in Knick--respect for precedent. Chief Justice John Roberts claimed that Knick only overruled one case decided in 1985, but the elements of that decision have been around much longer. "Under cover of overruling "only' a single decision," Knick "smashes a hundred-plus years of legal rulings to smithereens," Kagan pointed out.

Knick is not a one-off for the Roberts Five. It is part of a pattern of 73 cases through the 2018 term where the Republican-appointed justices delivered big wins for big Republican donor interests. We've seen it in voting rights, campaign finance, arbitration, environmental regulation and more. Roberts and his fellow Republican appointees are regularly ruling, in partisan 5-4 decisions, in favor of the partisan, big-money interests who got them where they are today.

A network of corporations and partisan donors is out to remake our courts. As the Washington Post recently revealed, this operation runs on $250 million in dark money supplied to a vast web of front groups, each of which serves a particular role in donors' machine.

Front groups funded by anonymous money manufacture legal controversies, like the Pacific Legal Foundation, which handpicked the plaintiff in Knick and shepherded the litigation to the high court. I happen to know a thing or two about them. They led the litigation in Palazzolo.

Front groups funded by anonymous money campaign for nominees. They will spend tens of millions on attack ads and fancy public relations campaigns, just like the group that spent desperately to force through Kavanaugh using two $17 million anonymous gifts, each from a single unnamed donor--perhaps the same donor.

Then there are the groups funded by anonymous money that file "amicus" briefs to guide judges to results they want.

Knick has all the elements of the Roberts Five pattern: it's a 5-4 decision; the majority is all Republican nominees; it overrules lots of precedent; conservative amici, many funded by dark money foundations, sang a chorus of support; and it's a massive victory for the partisan donor interests seeking to control our courts.

The chief justice likes to say his court isn't partisan; that's because people believing that helps him be partisan. But it's actually worse. The Roberts Five have become virtual delivery boys for big Republican donor interests, almost daring us to point out the obvious pattern.

I accept the dare.

This is why, with Democrats in control of the U.S. House, we need to: subpoena the dark money; see who is behind all this; identify conflicts of interest; change the disclosure rule for amici; and clean up this mess. We should also see Justices' schedules, gifts, hospitality, and other opportunities for special treatment to ensure they are bound by the same transparency rules as the rest of the federal judiciary.

I wish we could simply rely on the integrity of these justices. That was the history they're still skating on. But there's too much secrecy, too much dark money, too much broken precedent and principle, too many loaded special interest wins, too little ethics oversight, and too long a pattern of capture. The good ol' days are gone.

Sen. Sheldon Whitehouse represents Rhode Island in the U.S. Senate. A former Rhode Island attorney general and U.S. attorney, Whitehouse serves on the Senate Judiciary, Budget, Finance, and Environment and Public Works committees.

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