Supreme Court Hears Arguments in Two Cases Affecting Small Business Property Owners

Date: November 14, 2018

Supreme Court Hears Arguments in Two Cases Affecting Small Business Property Owners

The U.S. Supreme Court began the 2018-19 term with arguments in two cases that concern small business. The first, Weyerhaeuser v. U.S. Fish & Wildlife Service, an Endangered Species Act case, asks whether the federal government can impose draconian restrictions without considering the economic impact on private landowners. The second case, Knick v. Township of Scott, Pennsylvania, raises constitutional questions about the right of a land owner to pursue just compensation in federal court when state or local authorities have taken private property.

Others have already provided thoughtful summaries of the arguments in Weyerhaeuser and Knick. But in our opinion, the Court seemed divided in both cases. And although it is difficult to predict how the Court will rule based on oral argument, a 4-4 split seems possible since Justice Kavanaugh had not joined the Court yet. Such an outcome equates to a loss, since it takes five votes to overturn a lower court opinion.

It is possible that the Court might grant a rehearing in the event of a 4-4 tie. In fact, the Supreme Court has ordered that the parties reargue the Knick case, which may be reason for cautious optimism—perhaps a sign that Kavanaugh has been asked to break an apparent 4-4 deadlock. And we note that the Court has not issued a similar order in Weyerhaeuser. Whether that means that there are five votes in that case (either for or against our position) is a question on which we can only begin to speculate at this time.

It is also possible that the Court may grant a petition raising the same issue(s) in a subsequent case to resolve still unanswered questions. We saw this happen when the Supreme Court decided to hear arguments in Janus v. AFMCE after a divided 4-4 opinion in Friedrichs v. California Teachers Association.

Stay tuned for more updates on the Supreme Court’s new term. We are currently waiting to see if the Court will review several cases that raise important issues for small business.

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