[D]on’t be deceived by what may superficially appear to be a shortage of noteworthy decisions in this Supreme Court term.

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From the United States Supreme Court come some encouraging tremors. 

That’s perhaps the top takeaway as the Court concludes its first term under a new composition that includes Justice Brett Kavanaugh. 

Although this term has been comparatively light in terms of straightforwardly blockbuster cases, such as 2008’s seminal Heller v. D.C. Second Amendment decision, conservatives and libertarians who base their votes with an eye toward judicial appointments can take heart. 

The past week offered two rulings that signal potentially tectonic jurisprudential shifts ahead. 

The first case centered on property rights and government takings, and suggested a possible future reversal of the abominable 2005 Kelo v. City of New London decision, which violated the Fifth Amendment by tolerating confiscation of private property for redistribution to other private parties rather than for “public use” as the Fifth Amendment explicitly requires. 

In Knick v. Township of Scott, the Court reversed its 1985 decision Williamson County v. Hamilton Bank.  That decision had imposed what Chief Justice John Roberts labeled a “Catch-22” obstacle before citizens seeking just compensation for government confiscation of private property under the Fifth Amendment.  Stated simply, Williamson County had required plaintiffs to pursue their claims in state courts before filing suit in a federal court.  The problem was that denial of the plaintiff’s claim in state court barred a subsequent claim in federal court. 

“The takings plaintiff thus finds himself in a Catch 22:  He cannot go to federal court without going to state court first;  but if he goes to state court and loses, his claim will be barred in federal court,” Chief Justice Roberts stated in his majority opinion.  “The federal claim dies aborning,” he concluded. 

On that basis, the new five-justice majority of Chief Justice Roberts and Justices Thomas, Alito, Gorsuch and Kavanaugh rightly overturned Williamson County. 

Beyond reaching the correct result, the decision should be welcomed for the signal it sends regarding the Court’s willingness to revisit and overturn bad precedent.  And on the issue of just compensation for government takings under the Fifth Amendment, Kelo should be first on the chopping block. 

The second notable decision over the past week involved a similar break from Supreme Court precedent that conservatives and libertarians should welcome. 

In Gundy v. U.S., the Court addressed the Constitution’s system of separation of powers, which the Founding Fathers deliberately created to help ensure limited government and maximal individual freedom.  “All legislative Powers herein granted,” the Constitution reads, “shall be vested in a Congress of the United States.”  Accordingly, the legislative branch is empowered to make laws, the executive branch is empowered to enforce laws and the judicial branch is empowered to interpret laws. 

Beginning with a line of precedent from the 1930s, however, the Supreme Court has disregarded that command, and allowed Congress to delegate its power to make laws to the executive branch.  As a result, we’ve witnessed unrestrained growth in the administrative state, run by unelected bureaucrats who aren’t held accountable for their decisions. 

At issue in Gundy was a 2006 federal statute entitled the Sex Offender Registration and Notification Act (SORNA), which outsourced the authority to “specify the applicability” of the statute’s provisions to the Attorney General.  In an otherwise unremarkable 5 – 3 decision (Justice Kavanaugh abstained because oral argument preceded his confirmation by four days), Justice Alito suggested a welcome willingness to revisit the issue in question at a later time. 

Specifically, Justice Alito in his concurrence openly stated that, “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” 

In other words, with Justice Kavanaugh now on the Court, Justice Alito would be willing to join Gundy dissenters Chief Justice Roberts, Justice Thomas and Justice Gorsuch to reconsider over eight decades of Congressional abdication of its lawmaking authority to the sprawling federal bureaucratic leviathan. 

With the federal government, often through executive branch agencies like the Environmental Protection Agency (EPA) and Department of Education, imposing ever-greater control over our lives and economy, that would mark a significant advance for the concepts of limited government and individual freedom. 

Accordingly, don’t be deceived by what may superficially appear to be a shortage of noteworthy decisions in this Supreme Court term. 

It also highlights the importance of judicial appointments, and the value of new justices like Neil Gorsuch and Brett Kavanaugh.  Additionally, with the Supreme Court so closely divided and much more to be accomplished, Americans mustn’t become complacent in seeking to seat more justices like them.