Knick v. Township of Scott

(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

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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.