Thread by @JoshMBlackman

1/ Thread on Knick: SG contended that an inverse condmenation claim arises under federal law for purposes of 1331. #scotus does not resolve that question bc takings claims can be brought under 1983

2/ At several junctures CJ Roberts writes that the Takings Clause should not be treated differently than other provisions of Bill of Rights. (J. Thomas has asserted that #scotus treats 2 Am as a second class right)

3/ In dissent, J. Kagan contends that the Takings Clause is "unique"

4/ J. Thomas writes brief, two-page concurrence that makes three arguments.

5/ First, the Fifth Amendment "makes just compensation a 'prerequisite' to the government’s authority to 'tak[e] property for public use.'” In other words, if compensation does not accompany the taking, the taking is "invalid"

6/ Second, SG argues that the rejection of the "Sue Me" approach "makes some regulatory programs 'unworkable in practice.'" Thomas replies: "so be it—our role is to enforce the Takings Clause as written."

7/ Though Thomas reiterates his opposition to "universal injunctions": "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,' by granting relief 'beyond the parties to the case.'"

8/ Third, Thomas flags an issue I hadn't considered: can "ordinary remedial principles" like a "trespass" claim, apply "to takings claims." Litigants--take note! Bring trespass claims. (The majority does note that trespass claims were popular in 19th century)

9/ The Kagan dissent is, as usual, delightful to read. I love this sentence: "Under cover of overruling “only” a single decision, today’s
opinion smashes a hundred-plus years of legal rulings to
smithereens."

10/ The majority and dissent disagree on what the text of the Takings Clause means. Kagan writes "As constitutional
text often is, the Takings Clause is spare." So #scotus "worked it out"

10/ Kagan does passive aggressive very well--like a comment at a faculty workshop: "The majority tries to explain away that mass of
precedent, with a theory so, well, inventive" and "Points for creativity"

11/ This bit could have come from a Catskill standup routine: "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."

12/ Kagan: "under modern takings law, there is “no magic
formula” to determine “whether a given government inter-
ference with property is a taking.” Wait till J. Thomas suggests the Court should reconsider Penn Central.

13/ @PacificLegal takes a victory lap on Knick:
"It’s a rare honor to be able to tell someone they won a landmark Supreme Court case." #SCOTUS pacificlegal.org/rose-knick-on-…