The Volokh Conspiracy

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Supreme Court

Cheerleaders and Property Owners Prevail in the Supreme Court (Updated)

Today produced one of the Supreme Court term's few true conservative-liberal splits, and showed additional signs of a generational divide on criminal law.


The Supreme Court issued four opinions today in argued cases, producing a range of interesting (and one expected) lineups.

First out of the gate was Lange v. California, in which the Court unanimously concluded that a police officer's pursuit of a fleeing misdemeanor suspect does not categorically justify a warrantless entry into a home. Justice Kagan wrote for the Court, joined by the other liberal justices and the Trump appointees (Breyer, Sotomayor, Gorsuch, Kavanaugh, and Barrett). Justice Kavanaugh wrote a concurrence, Justice Thomas concurred in part and in the judgment, and Chief Justice Roberts concurred in the judgment joined by Justice Alito.

One thing that's particularly interesting about this decision is that the line-up suggests a generational split among the conservative justices. We also saw this split in Van Buren (the case about unlawful computer access), suggesting that Trump's appointees may be more concerned about law enforcement excess than the other conservative justices. It will be interesting to see whether this trend continues and, if so, whether it extends to areas like qualified immunity.

Next up was Collins v. Yellen, a potentially important separation of powers case concerning the constitutionality of the Federal Housing Finance Agency and its authority. The opinion, by Justice Alito, covers a range of issues, including standing, executive power, and severability, and the line up of justices is a mess. How much of a mess? Read for yourself:

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, KAVANAUGH, and BARRETT, JJ., joined in full; in which KAGAN and BREYER, JJ., joined as to all but Part III–B; in which GORSUCH, J., joined as to all but Part III–C; and in which SOTOMAYOR, J., joined as to Parts I, II, and III–C. THOMAS, J., filed a concurring opinion. GORSUCH, J., filed an opinion concurring in part. KAGAN, J., filed an opinion concurring in part and concurring in the judgment, in which BREYER and SOTOMAYOR, JJ., joined as to Part II. SOTOMAYOR, J., filed an opinion concurring in part and dissenting in part, in which BREYER, J., joined.

The Court is unanimous that the relevant statutory claims should be dismissed, 8-1 on whether the plaintiffs here had standing and 7-2 on whether the for-cause limitation on removal of the FHFA director (with Kagan joining the conservatives only because of the precedential effect of Seila Law), the majority splinters on other issues.

That Justice Alito had Collins leads me to surmise that this case is what held up California v. Texas. Justice Alito is not the fastest opinion writer and there are a lots of overlapping issues between the two cases, including both standing and severability (the latter of which matterd in Arthrex too), so I can imagine it took some time to iron out any potential inconsistencies between the cases. It also makes me think that Justice Alito was not initially assigned the majority in Fulton. 

The third opinion today may have been the one ore non-lawyers were following than any other: Mahonoy Area School District v. B.L., aka. the cheerleader case. Justice Breyer had the opinion for the Court, concluding that the school district could not punish this cheerleader for saying "Fuck Cheer" on social media. While acknowledging that school districts may sometimes have cause to regulate or sanction off-campus speech, such interests were not sufficiently strong here. Justice Breyer's opinion was joined by all of the justices except for Justice Thomas. Justice Alito wrote a concurrence joined by Justice Gorsuch.

The fourth and final opinion of the day was Cedar Point Nursery v. Hassid, in which the Court concluded that a California law requiring property owners to grant physical  access to union  organizers constituted a per se physical taking under the Fifth Amendment's Takings clause. Chief Justice Roberts wrote the majority, joined by the Court's conservatives. Justice Kavanaugh wrote a concurrence. The Court's liberals dissented in an opinion by Justice Breyer. This case is not only a significant victory for property rights, it is also one of the few cases this term in which the Court split 6-3 along traditional ideological lines.

We will get more opinions on Friday.


Note: As initially published, I referred to the Chief Justice as "Chief Justice Robes." This was a typo, and not intended as a comment on the Chief. Honest.