This Article is the first to identify the Roberts Court’s pattern of stealth overruling of several takings precedents by neutralizing or ignoring essential language from prior decisions. The Article explores six examples of this phenomenon and proposes a framework for identifying when a subsequent Court’s critical assessment of key language from a prior decision, whether it technically qualifies as a “holding” or not, necessitates consideration of the stare decisis factors used in Dobbs v. Jackson Women’s Health Organization. Rather than focusing on the sometimes-arbitrary distinction between holding and dictum, the Article introduces two other indicia of precedential language that warrant a robust stare decisis consideration à la Dobbs. First, the targeted language may be a cornerstone, that is, the foundation for a significant body of subsequent state and federal case law. Second, the passage in question may constitute a keystone, that is, language that was critical to the formation of a majority opinion or without which the opinion no longer makes sense.
Litigators and their allies can mine several sources to identify cornerstones and keystones, allowing them to argue convincingly that the Court’s attempt to ignore or abandon precedential principles warrants a full stare decisis analysis: state and federal cases, public papers of Supreme Court Justices, oral arguments, and party and amicus briefs. Relying on dozens of takings cases and snippets from the public papers of Justices Blackmun, O’Connor, Powell, and Stevens (reproduced here), the Article demonstrates how the Roberts Court has already overruled by stealth six essential principles of takings jurisprudence.
While scholars, judges, and advocates have fixated on the Court’s head-on confrontation with Chevron deference in Loper Bright, the Roberts Court has been issuing perturbing decisions with even greater implications for the future of the regulatory state. Flying under the radar, the Court has followed a path that, if continued, could result in the gradual dismantling of police power and other regulations at all levels of government.
* Richard E. Nelson Eminent Scholar Chair in Local Government, University of Florida Levin College of Law. Thank you, Danaya Wright, for allowing me to bounce ideas off your impressive and creative brain, along with Ben Johnson, Jerold Kayden, Lyrissa Lidsky, Merritt McAlister, Timothy Mulvaney, and Christopher Serkin. The author also appreciates the valuable feedback he received from participants at the 2023 Brigham-Kanner Property Rights Conference. This Article benefited greatly from the expertise of two out-standing professionals: Elizabeth Hilkin of the Lawton Chiles Legal Information Center (UF) and Ryan Reft of the Manuscript Division in the Library of Congress. Sam Mendez provided excellent research assistance.
The full text of this Article is available to download as a PDF.