Today the Supreme Court denied certiorari in Arrigoni Enterprises v. Durham, a case that presented the question of whether to overturn Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City. Justice Thomas, joined by Justice Kennedy, dissented from the denial of certiorari, and both seemed primed not only to reconsider Williamson County, but overrule it.

As Thomas describes it, the one-two punch of Williamson County and San Remo Hotel v. San Francisco, make it effectively impossible for property owners to ever seek review in federal court for violations of the Takings Clause. Even worse, through strategic gamesmanship by the states, some plaintiffs are never able to obtain any review at all.

In Williamson County, the Court ruled that a plaintiff ’s allegation that local government action resulted in a taking is not “ripe” for review in federal court until the plaintiff “seek[s] compensation through the procedures the State has provided for doing so.” Id., at 194. In doing so, the Court superimposed a state-litigation requirement on the Fifth Amendment’s Takings Clause. As Members of this Court have noted, the Constitution does not appear to compel this additional step before a property owner may vindicate a Takings Clause claim. San Remo Hotel, L. P. v. San Francisco, 545 U.S. 323, 349 (2005) (Rehnquist, C.J., joined by O’Connor, KENNEDY, and THOMAS, JJ., concurring in judgment). …

Moreover, employing the rules announced in Williamson County and San Remo Hotel, clever state-government attorneys have rendered a nullity even the chance at review in state court. When a plaintiff files a suit in state court to exhaust his remedies as Williamson County in- structs, state-government entities and officials may re- move that suit to federal court under 28 U. S. C. §1441. Once in federal court, some state defendants have moved to dismiss on the ground that “the plaintiff did not litigate first in the state court.” Berger, supra, at 673. And some federal judges have dismissed the claims, rather than remanding them. See, e.g., Koscielski v. Minneapolis, 435 F. 3d 898, 903 (CA8 2007) (approving of the dismissal of a removed takings claim for lack of finished state-court procedures). This gamesmanship leaves plaintiffs with no court in which to pursue their claims despite Williamson County’s assurance that property owners are guaranteed access to court at some point.

Thomas and Kennedy would have granted certiorari, to avoid relegating the Takings Clause to “second-class status.”

Along these lines, Williamson County has downgraded the protection afforded by the Takings Clause to second- class status. Plaintiffs alleging violations of other enu- merated constitutional rights ordinarily may do so in federal court without first availing themselves of state court. But the same is not true for a Takings Clause plaintiff. The other “notable exception” is “for prisoner plaintiffs.” Samaha, On Law’s Tiebreakers, 77 U. Chi. L. Rev. 1661, 1722 (2010). We should consider overturn- ing Williamson County because there is “no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation.” Dolan v. Tigard, 512 U. S. 374, 392 (1994).

This echoes Justice Thomas’s dissent from denial of certiorari in December, where he implored the Court not to treat the Second Amendment as a “second-class right.”

“I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.”

The greatest ruse of Footnote Four is that the Court isn’t even consistent on giving heightened scrutiny to the enumerated rights–Second Amendment and Takings Clause among them–let alone unenumerated rights that are deemed “fundamental.” The Court should not be free to pick and choose which constitutional rights it likes, and accordingly give them greater protections.