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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.

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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.

NEXT: Today in Supreme Court History: June 23, 1987

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73 responses to “Cheerleaders and Property Owners Prevail in the Supreme Court (Updated)

  1. Well thank goodness students have gotten some of their free speech rights back. Glad to see ScoTUS squashing the relatively recent phenomenon of abridging student speech rights.

    1. Blessing of liberty, right, smut talking kids.

      Though I blame her parents for litigating this rather than telling her to stop being an idiot.

      1. Except one has the impression that it is not the smut that got her in trouble, but the criticism of the school.

      2. Bob from Ohio…yeah, I agree she was a ‘potty mouth’.

      3. “Though I blame her parents for litigating this rather than telling her to stop being an idiot.”

        Maybe they did both, which is of course the correct response.

        Tell the kid privately to stop being an idiot.
        Tell the school publicly to stop being a censor.

        This was an issue for the parents to deal with, not the school, and there’s no reason to think the parents didn’t handle it appropriately.

        1. “Tell the kid privately to stop being an idiot.”

          LOL No way they did that and litigate it to the S/C, even if they didn’t pay for it. Her “punishment” was to not be on a JV team she did not want to be on.

          It was “you go girl!” all the way.

          1. Um, they didn’t litigate it to the Supreme Court. The school district did.

            The school district lost at the district court. Twice. (Preliminary injunction and then on summary judgment.) It appealed to the Third Circuit and lost there, 3-0. And it appealed to the Supreme Court and lost 8-1.

            If you want to argue that someone was obsessed with a relatively unimportant issue, point fingers at school district officials (and their lawyers, who took an “as long as the check clears” approach.)

      4. Profanity does not equal smut, they are completely different.

        But that’s probably another case coming up soon: can a school district expell an 18 year old student for his/her off campus porno?

  2. Thank goodness US business has been given more constitutional rights against unwelcome regulation. For a moment there the US was almost at risk of becoming a civilised country.

    1. Regulatory agencies overlap the dictate part of dictator too much already. Carving direct control away from the president obviates even the fiction the regulations, aka laws, are created by the executive branch executing Congress’ meta law on how to create laws.

      I don’t know how you define civilized, but countries with such features rarely are.

      Hooray, an unelected person, directly controlled by neither the legiature nor executive, is speaking words into existence you have to pay fines over, or maybe even go to jail.

      “Hooray!”, scream politicians whose every other word is “democracy”.

      1. Yes, that’s entirely true, except for the part where we’re talking about regulators appointed by the Governor (I assume), or individuals answerable to the same, who are removable by the Governor at a minimum when they do wildly unlawful things, and who carry out laws adopted by Congress and signed into law by the President, which can be amended at any time, and the limits of which are policed by the courts. But sure, except for that.

        1. (I assume)

          You do that a lot, and it almost always makes you sound foolish. But then again most everything you post makes you look foolish…like this:

          regulators appointed by the Governor (I assume), or individuals answerable to the same, who are removable by the Governor at a minimum when they do wildly unlawful things

          In this case they violated the constitutional rights of citizens (which is illegal). Do you think they will be removed by the Governor?

          Another good example is claiming that a prerequisite for being a civilized country is the state mandating that you give access to your property to private entities against your will.

          1. If you want to go research the California state constitution, go ahead.

            Apart from that, yes, I think being able to regulate what private citizens do with their property is an important part of being a civilised country. And this case sets a dangerous precedent. I don’t care very much about California unions, but I do care about health & safety inspections, for example. If requiring that unions have access is a taking, why not government-mandated inspections? American food standards are already dreadfully low, and enforced only at a bare minimum. I shudder to think if enforcement is made entirely impossible through spurious constitutional arguments.

            1. If you want to go research the California state constitution, go ahead.

              I have no idea what the hell you’re babbling about (nor do you, I’ll wager). The CA state constitution is irrelevant here.

              Apart from that, yes, I think being able to regulate what private citizens do with their property is an important part of being a civilised country.

              This isn’t a case of regulating what private citizens do with their property. It’s a case of taking that property for the use of other private entities.

              If requiring that unions have access is a taking, why not government-mandated inspections?

              The idiocy of that question is self-evident. I’ll give you a little time to see if you can figure it out on your own. If you need some help, it’s well covered in the decision that you clearly didn’t bother to review before rushing to share your ill-informed “thoughts” with us.

            2. “Apart from that, yes, I think being able to regulate what private citizens do with their property is an important part of being a civilised country.”

              That’s obviously a legitimate and important point, and I will note that the United States was largely settled by people voting with their feet that thought liberty and opportunity are more important than overbearing government regulation of property rights.

              I’m glad you can live somewhere the law conforms with your sensibilities.

            3. Apart from that, yes, I think being able to regulate what private citizens do with their property is an important part of being a civilised country.

              That’s kind of a weird take, since (aside from completely misunderstanding what this case held) I hardly think government attempts to control private property are something that distinguishes what you would consider civilized (note the spelling in the civilized world) countries from what you would consider uncivilized ones. Do you notice many third world dictators who take a hands off approach to private property?

        2. Your rant was so generic i assumed you were talking about the Yellen regulatory agency issue with the for cause firing.

    2. Such as say the right not to have your property invaded randomly. The legal invasion of which is an “easement” which is a “taking.”

      Other countries also have takings laws. And I dont think stronger takings laws makes one less civilized.

      1. I’d be very surprised if California property law recognised the possibility of an easement to go on someone else’s land (which part is not specified) for an hour each day for a few months out of the year.

        1. Your post makes little sense in general, but this part in particular is especially odd:

          an hour each day for a few months out of the year

          I’m not sure exactly what amount of time that’s supposed to represent. The second sentence of the decision:

          “The regulation mandates that agricultural employers allow union organizers onto their property for up to three hours per day, 120 days per year.”

          That equates to 45 full 8-hour shifts, or 9 full work weeks, or just over 2 whole months of work time…which is over 17% of a single-shift work year (how much over depends on things like holidays and such). That’s hardly an inconsequential amount of time to have your operations disrupted.

  3. From the Lange case:

    In California, it is a misdemeanor to litter on a public beach. See Cal. Penal Code Ann. §374.7(a) (2020). And to “negligently cut” a plant “growing upon public land.” §384a(a)(2), (f ). And to “willfully disturb[] another person by loud and unreasonable noise.” §415(2). And (last one) to “artificially color[] any live chicks [or] rabbits.” §599(b)

    Quick, hide the purple rabbit and fuschia chicks before the cops arrive! LOL

    1. That same restriction is common in many jurisdictions, including here in TX…albeit in municipalities’ codes of ordinances, not as a state-level statute. The same is true of general prohibitions on the sale of chicks, baby rabbits, etc as novelties, which is closely related in purpose to the former. It’s an attempt to combat the problem of people buying such juvenile animals (usually for their children), which almost inevitably end up being discarded, mistreated, etc when their novelty wears off and the realities of keeping and caring for the adult versions become apparent.

      1. The California statute bans the sale of such colored animals, but it separately bans the coloring of such animals whether or not being offered for sale. Hard to see how banning the dying of one’s own pet rabbit (which is of course perfectly legal to own) advances any state interest.

  4. And once again Clarence Thomas proves that he has no grasp at all of what the first amendment means. Thankfully, the other eight seem to have a clue.

    1. Ah, but you’re simply going by intuition, instead of carefully considering the historical context!

    2. Sorry, but I actually agree with Thomas, the amendment should mean exactly the same today as it did when ratified. If the people want more speech protection there is a process for that, it has not been followed in any form.

      1. Well, I think it’s more that people want the exact same amount of speech protection, but don’t want to leave school pupils at the mercy of the school. And since it doesn’t really say anything in the Amendment about pupils being on their own in the first place, I don’t see why the only solution should be to pass a “yes, we really mean it” amendment.

        1. It continually amazes me how many “social problems” can be solved by eliminating government run schools, and just finding individual students.

          1. I agree. Cleary (judging from the comments section here if nothing else) Americans are perfectly capable of ending up uneducated with the education system they have, so why not abolish the whole system and send all the low-income 12-year olds straight to their local fulfillment centre? Cut out the middle man, etc.

            1. Typo aside, the argument was to send low-income 12-year olds to the school of their choice.

              1. Well, whatever school they can pay for.

                1. I believe “finding” was intended to be “funding”.

            2. Americans are perfectly capable of ending up uneducated with the education system they have

              What’s your excuse?

              1. I suspect Martinned of being Dutch and therefore untainted by the American education system. I also suspect Dutch government schools of being less appalling than American ones.

                1. I suspect Martinned of being Dutch and therefore untainted by the American education system. I also suspect Dutch government schools of being less appalling than American ones.

                  That doesn’t really answer my question.

            3. “Americans are perfectly capable of ending up uneducated with the education system they have”

              Somehow we get by. Our education system is good enough to rank the US states as 39 of the top 50 economies in the world by GDP per capita. The Netherlands is 48th, right behind Oklahoma but ahead of Florida.

        2. But the problem is that the Amendment in question doesn’t say anything at all about free speech, schools, pupils, on campus or off campus. It just says something about “privileges and immunities.”

          Since no further detail is provided, we are required to guess what they might be. Thomas’ argument is that courts, shortly after 14A adoption, did not conclude that the privileges and immunities included the privilege of dissing and cussing your teacher. But he seems open to his fellow Justices persuading him, if they should advance an argument that there was such a privilege, rather than just assuming it.

          I’m glad, results wise, that Thomas lost, but I don’t see that his argument is foolish.

          1. Yes, if there’s one thing we know about Justice Thomas it’s that he’s open to being persuaded he’s wrong.

            But seriously, for a long time (before and) after the 14th amendment was ratified, the dispute was less about what those privileges and immunities amounted to, but about whether black people, women, etc. could be exempted from them. There was never any legal basis for that, but that didn’t stop reconstruction era courts from doing that anyway. Most of those exemptions have since been overturned, but school children still seem to be a question mark.

            That is fine, at a minimum it makes sense to allow the school to give students a bad grade if they write answers on exams that are wrong, but that doesn’t change the fact that the high-level process is to cut back on extra-legal exemptions to the protections given by the 1st and 14th amendments, not to add protections that weren’t there before. And an argument to the contrary, like Thomas’s, relies on giving practice at the time of drafting priority over the (plain) meaing of the text of the Constitution, which is exactly what the Thomases of this world are supposed to be against. The Alien & Sedition Acts were passed by a Congress full of Founding Fathers, and the reconstruction era courts and legislatures were super-racist. There’s a reason why we don’t elevate practice over the text of the Constitution.

            1. “Yes, if there’s one thing we know about Justice Thomas it’s that he’s open to being persuaded he’s wrong.”

              I mean, isnt he? He changes views moreso than almost every other justice. Qualified immunity, double jeapordy, Auer, religious protections, etc … he has gone to great lengths to trash his own opinions in concurrence.

              I dont think its very fair to say otherwise just because one might disagree with his conclusions.

            2. the fact that the high-level process is to cut back on extra-legal exemptions to the protections given by the 1st and 14th amendments, not to add protections that weren’t there before.

              What high level process are you referring to ?

              relies on giving practice at the time of drafting priority over the (plain) meaing of the text of the Constitution

              Does “the privileges or immunities of citizens of the United States” really have a “plain meaning” ?

              Would you care to list them ?

              1. Does “the privileges or immunities of citizens of the United States” really have a “plain meaning” ?

                No, but “citizens” does.

              2. I forgot to add – so I will do so here – that Martinned’s philippic against the “super-racist” reconstruction courts is hardly relevant to the narrow reading of “privileges and immunities” established by the Slaughterhouse Cases*, since the Court went out of it’s way to emphasise that the 14th Amendment did protect the :

                “…the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.”

                Although expressed in somewhat dated language, as a determined expression of “super-racism”, this does leave something to be desired.

              3. How does the lack of ambiguity of “citizens” help you construe the meaning of “privileges and immunities” ?

                1. It doesn’t. And there’s no need to. That’s exactly my point. There is no dispute here about the government’s general ability to punish citizens for saying mean things on Snapchat, only about whether some citizens are more equal than others.

                  1. There is no dispute here about the government’s general ability to punish citizens for saying mean things on Snapchat, only about whether some citizens are more equal than others.

                    You seem to be reading a different case. The argument between Thomas and the majority has nothing to do with the equality of citizens, and everything to do with the extent of the “privileges and immunities” thought to be incorporated against the States.

                    Heeeeere’s Clarence :

                    When students are on campus, the majority says, schools have authority in loco parentis—that is, as substitutes of parents—to discipline speech and conduct. Off campus, the authority of schools is somewhat less. At that level of generality, I agree. But the majority omits important detail. What authority does a school have when it operates in loco parentis? How much less authority do schools have over off-campus speech and conduct? And how does a court decide if speech is on or off campus?

                    ……I would begin the assessment of the scope of free-speech rights incorporated against the States by looking to “what‘ordinary citizens’ at the time of [the Fourteenth Amend-ment’s] ratification would have understood” the right to en-compass.

        3. I believe the problems are much more significant than “students have no rights”, despite actually liking the results I believe modern first amendment jurisprudence is fundamentally illegitimate.

          Just as a simple example, the modern distinction between obscene and non-obscene materials. I would be very happy with an amendment that actually made that the constitutional floor, but I do not believe it the job of the Supreme Court to make it such – particularly using a sliding index of what qualifies. If it would have been considered obscene when the amendment was ratified it should be understood as being obscene today, at least without the intervention of a properly ratified amendment.

          As for the argument comparing the first and second amendments, I really don’t see the first having any bearing on how something is said, just as I don’t believe the second has anything to say about what arms are protected. I believe that, properly understood, the first places some modest limits on what the government may punish for having been said and the second places very strict limits on what arms the government may prohibit.

          1. “I believe that, properly understood, the first places some modest limits on what the government may punish for having been said”

            I’m a bit curious of your reasoning here. As the saying goes, what part of “no law” are you finding unclear?

      2. Right. So, since the internet and other forms of technological communication didn’t exist at the time the 1A was ratified, the following are not protected by the 1A:
        o Sound recordings
        o photographs
        o movies
        o phone calls
        o radio and TV
        o social media on the internet
        o digital signs
        o signs lit by electric lights

        And if you do, do you also have the same view of the 2A, i.e. it only protects the right to own weapons that existed at the time such as muzzle loaded flintlock muskets?

        1. Hemming and hawing and waving of hands and smoke and mirrors and bingo! We can have it both ways without looking like two-faced hacks out for naked power grabs of the sort the Constitution was supposed to hamper.

      3. Except we are taking about basic protections here, the first amendment did mean people are allowed to say things like “fuck cheer” and the government can’t take action over that.

        Thomas tends to do something were he goes, but wait the sedition act, whenever these specific cases arise, but endoses very broad free speech rights in all other cases.

        Public schools are the government. That part isn’t that originalist, but public schools didn’t really exist at the founding and Thomas has been more than willing to extend speech protections to other organizations, for example, public labor unions, and even public schools.

        And there is nothing originalist about saying, oh if you are under 18 you have no rights. I dont think that works.

        1. “nothing originalist about saying, oh if you are under 18 you have no rights”

          Correct, it was 21 when written.

          Children may not have “no rights”, but plenty of things adults do by right are forbidden to them. No adult is compelled by law to attend school, for instance.

          1. So the 1st amendment means that school administrators, i.e. the government, has authority to determine what students can or cannot say.

            Really? And to be frank, Thomas is alone here, even among originalists Other originalists, Gorsuch, Scalia, and so one have all held otherwise in many other cases.

            1. A school is a different type of government entity.

              “Thomas is alone here”

              So? If he is correct, he is correct. Was Harlan wrong in Plessy just because he was alone?

              The problem is that libertarianism has infected the right.

              1. “A school is a different type of government entity.”

                Says who? The constitution doesn’t say that. Thomas has held repeatedly that university’s aren’t “different government entities.” He makes an exception here. What exactly makes something a different government entity?

                Again, public schools didn’t not exist at the founding. Neither did all sorts of public agencies. There wasn’t even a standing police force like we know it today. Is the police exempt from the 4th amendment?

                If you want an exception you have to justify it. Originalism does not say that any new public agency is somehow exempt from constitutional rules. Thats a perversion.

                The constitution, as originally understood by the 1st and 14th amendment, says everything is subject to these rules.

                1. “public schools didn’t not exist at the founding.”

                  Assuming that second “not” was extraneous, that is not true.

                  Boston Latin was founded as a public school in 1635. There were others in NE towns too. [ A school established in nearby Dedham was the first tax-supported public school.]

                  https://en.wikipedia.org/wiki/Boston_Latin_School

  5. In Lange v. California, the opinion says

    “The amicus argues, though that we have already created the rule she advocates.”

    Would that be an amica doing the arguing, not an amicus?

  6. Also in Lange v. California, the younger generation is much more aware that when the police enter people’s homes, people are much more likely to get shot. The existence of no-knock, plainclothes SWAT teams makes police entry into a home a much more serious business.

  7. 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.

    Of course he dissented. Thomas has made it clear throughout the years that he doesn’t believe students have any rights and should be subject to any discipline that administrators decide.

    He was the lone dissent in Safford United School District #1 v. Redding where he sided with the school and has no problem with a school strip searching a 13 year old girl because they suspected she was hiding ibuprofen.

    1. I mean, it isnt surprising given the harsh environment he was raised in. He probably thinks that was somewhat useful for his development, and that why should students have it any better. Expecially constitutionally having it any better.

      Now, I think that’s stupid, but it makes sense from his perspective. It also explains why he endorses extremely broad understandings of speech (see campaign donations) but basic speech rights for students somehow don’t exist.

      Of course, he frames it under originalism, but still, I’m assuming it is based on his experience.

    2. “Thomas has made it clear throughout the years that he doesn’t believe students have any rights and should be subject to any discipline that administrators decide.”

      Everyones understanding until Tinker. You know, back when public schools were not horrible.

      1. A lot of public schools aren’t horrible now, though it depends on where they are. Obviously wealthy suburbs have better schools than the inner city, but that was also the case before Tinker. That public schools are horrible is mostly a conservative meme with no more mooring in reality than a lot of other conservative memes. The postal service mostly delivers the mail on time, too.

      2. Back in the good old days when a teacher could still beat a student until their arm grew tired in every state (except New Jersey, but it’s not really America). At least we still have Texas.

      3. There was never a time when public schools were not horrible. There are just horrible in a different way now.

  8. I am glad for Miss Levy, but the courts seem inconsistent in their application, at least to me.

    1. Bong hits 4 Jesus is a stupid case with stupid complexities and the sooner its overruled the better. If you toss that I’d says it fairly consistent.

      1. I don’t agree it should, but you might gain more purchase today as I am convinced much of these rulings decades ago were more about sticking it to the other side than any principled stance.

        And the left is in full attack mode to get the power to censor harrassment and “dangerous” speech directly, oh look, our political opponents’ speech is harrassing!

        So, sadly, it might be time. 🙁

      2. It’s cknsistent. The conduct took place at a school event, so the school was acting in loco parentis.

        I think the court was being somewhat inexact by talking about on campus and off campus as a matter of geography. School events are I think stilled within rhe school’s domain.

        I think the real boundary case is what happens when the student is taking an on-line class from home and the parents are present in the home.

        Does the school still get in loco parentis priveleges? A harder call.

        1. I suspect the school would win the boundary case most of the time it would win otherwise. But there might be cases where the school would win if the student is on campus, but loses when at home with parents who disagree with the school supervising.

        2. I think the real boundary case is what happens when the student is taking an on-line class from home and the parents are present in the home.

          Does the school still get in loco parentis priveleges? A harder call.

          There have been instances over the last year where students got in trouble because firearms were visible in their Zoom backgrounds while in online school.

  9. Practically not a mess: “A delivered the opinion of the Court, in which B, C, D, and E joined in full . . . blah blah blah”

  10. On Collins v Yellin, there was a single opinion of the court adapted in full by a majority of the justices. So the fact that there were various concurrences and dissents isn’t as important as it would be in a case where one has to parse through the various opinions to figure out what the court decided and why. The various side opinions might well matter to a future Supreme Court with a different composition, who might decide to rely on one of the concurrences. But they shouldn’t matter at all to lower courts and to litigants. For the time being, there’s only the majority opinion, and that’s that.

  11. Rah, rah, sis-boom ba!
    First Amendment, bitches, ha ha ha!

    1. +1 for creativity.