As we wrote in October, the Supreme Court is considering whether to overrule its decision in Williamson County in the case of Knick v. Scott Township. The Williamson County rule requires property owners to exhaust state remedies before they can ask a federal court to decide whether the government had violated their Fifth Amendment rights. Even though the Williamson County rule was adopted in the unique context of takings claims, some lower federal courts have wrongly applied it to land use cases involving First Amendment rights and the Religious Land Use and Institutionalized Persons Act (RLUIPA).
Since oral argument in the Knick cased occurred on October 3, 2018, right before Justice Brett Kavanaugh took his seat on the Supreme Court, the case was set to be decided by the eight remaining justices–leaving the possibility of a 4-to-4 split. However, just last week the Supreme Court ordered additional briefing and an another argument in the case. This suggests that the Court was likely split 4-to-4 on the case and that Justice Kavanaugh now plays the role of tiebreaker. We will have to wait until early 2019 when the case is reargued to discern what Justice Kavanaugh thinks of the matter. He’s already been an active questioner at other oral arguments, and his questions may give us an early indication whether Williamson County will continue to plague takings and religious land use plaintiffs alike.