Strict Scrutiny - Cheerleaders for Democracy

Episode Date: June 24, 2021

Kate and Leah recap four opinions: Lange v. California; Mahanoy Area School District v. BL; Collins v. Yellen; and Cedar Point Nursery v. Hassid. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. This is another lightning fast response episode. So we reserve the right to refine our takes as they mature like fine wines. We're coming to you just a couple of hours

after the court issued four big opinions. But first, we're your hosts. I'm Kate Shaw. And I'm Leah Lippman. So as I said, we got four opinions today, which means we have eight to go before the end of the term. So we're going to try to take through all of them. So maybe, Leah, let's take them in the order in which they came down this morning. Sure. So the first opinion is Lange versus California. And for those of you who don't know, when the court releases opinions, it releases opinions in the reverse order of seniority of the justices. So it will first release any opinions by the most junior justices and then release subsequent opinions that are written by more senior justices.

So the first opinion we got is Lange versus California. This was written by Justice Kagan. The facts of the case were that Mr. Lange drove by a police officer while he was playing loud music and honking his horn. The officer followed him and later turned on his lights close to Mr. Lange's home. Mr. Lange, however, pulled into his driveway and entered the garage, and the officer followed him in there. Generally, the Fourth Amendment requires officers to obtain a warrant before entering someone's home, but there is an established exception for so-called exigencies. Officers can go into your home without a warrant in order to prevent loss of life or destruction of evidence or something of similar concern. The California court below held that an exigency exists and that officers can follow you into your home without a warrant if you are suspected of a misdemeanor. The Supreme Court rejected that rule unanimously. Justice Kagan, as I noted, wrote the majority opinion saying that

the court's Fourth Amendment cases kind of eschew rigid rules along the lines of what the California court had adopted. But the court also noted that in most cases, warrantless entry of people suspected of misdemeanors fleeing the police probably would be justified. In fact, the court said that approach will in many, if not most cases, allow a warrantless home entry. Justice Kavanaugh made the same point with something that struck me as like kind of an awkward tip of the hat. So he said, as Lange's able counsel forthrightly acknowledged an oral argument, the approach adopted by the court would still allow police to make warrantless entry into a home nine times out of 10 or more. It kind of makes me wonder like the value of taking these cases or what the court is doing here, given that there's just very

little practical daylight between the rule adopted below and the rule that the Supreme Court adopts. And the able counsel line, I don't know why it just struck me as odd because, you know, the court does often refer to statements that counsel made at argument. And now if you just say counsel, are you negging them? It's kind of weird and it creates this insular Supreme Court bar clubbiness. Like I know this person, like we're cool kind of thing that I don't know. I don't love. I think that's right. I also, you know, when the court appoints an amicus, there's always this like very pro forma thank you that issues, right? So that we appointed X to take Y position. He or she has ably discharged his responsibilities.

And I always like wonder whether there's going to be some slight deviation from that formula, but it's good there isn't because it would create this negative inference if you did, if you just went back to the kind of ordinary, like, you know, kind of bloodless thank you that you typically issue. So I think it's right. It is strange when they single out for praise. You know, it's one thing to focus on a concession that is substantive or an argument that is substantive. That's of course fine. But I agree. There was something very weird about that line. Yeah. So that was one separate writing, the Kavanaugh concurrence. There were some others, and I'll talk more about the Kavanaugh

concurrence in a second. So Justice Thomas concurred. First, he noted that there might actually be some historically grounded rule-like exceptions for when warrantless entry is permitted, despite the court saying that most Fourth Amendment doctrine. Madrid, which we talked about, and that was the case in which the court held that an officer had seized an individual when they shot her, but she was able to escape. Justice Thomas cites that case for the proposition that, quote, an arrest occurs whenever an officer applies physical force to the body with intent to restrain. If you read Torres, however, the court describes it as a seizure. You know, maybe there's no distinction between them, but it was just a little bit odd to me to hear that the conduct described in that case as an arrest rather than a seizure. Arrest affects a seizure, but are all seizures arrests? Right. Exactly.

I think the answer is no. Yeah. Or at least I thought it was. Right. But yeah, you're right. That sort of throws that into question maybe. Right. Arrest affects a seizure, but are all seizures arrests? I think the answer is no. Or at least I thought it was. But yeah, you're right. That is what happens when an officer violates this rule. On this point, he's joined by Justice Kavanaugh, and he wrote that, quote, the federal exclusionary rule does not require suppressing any evidence seized in violation of this rule. He also takes some knocks against the exclusionary rule, you know, calling it judicially invented, and says the court should further limit the exclusionary rule

that Justice Kavanaugh joined him is, I think, an important indication that this new court is going to be even more aggressive about limiting criminal procedure remedies than the previous court was. But then Justice Thomas has this interesting observation, which I think is correct, where he says that if an officer, quote, can't do something under the court's precedents, but nothing happens as a result of that violation, that is, there's no remedy, then the behavior actually isn't prohibited. And he closes this passage by saying criminal defendants must rely on other remedies. But the reality is there are no other remedies. The court's qualified immunity jurisprudence insulates officers from civil

liability for damages. There is no other remedy. And by insisting on continuing to narrow the exclusionary rule, the court is just, again, doing this like dual track system that makes no sense. You know, insisting that it is expanding and preserving rights, maybe in name only, as we were explaining, and then undoing the remedies at the same time. Can I ask you about the Chief Justice Roberts concurrence or like ostensible concurrence? So I have to confess. So maybe you should describe it. But this is a writing that is styled as a concurrence. And I genuinely don't quite understand why it is not styled as a dissent. Yeah. So he says that he thinks there is an absolute rule justifying warrantless entry in

cases of flight. He says, quote, it is the flight that has always been understood to justify the general rule. Police officers may enter premises without a warrant when they are in hot pursuit. And here, right, ostensibly, Mr. Lange was fleeing. You know, he continued into his garage despite the police officer turning on his lights. I think, you know, one reason why it might be a concurrence instead of a dissent is there's some uncertainty and inconsistency in the court's cases about when you can and should affirm on alternative grounds besides the ones that the court below gave. That is when the court can say the result was right, but for the wrong reasons.

Right, which is what Roberts is saying here, right? Like he does think that this was a valid entry, just like not for the reasons that the lower court gave. Right. Well, so perhaps I think maybe there's also a difficult question about whether you think this is truly flight. That is, did Mr. Lang know the police officer was pursuing him? You know, there's some question about like when the officer turned on his lights, whether Mr. Lang thought he was being stopped or like whether he was just, you know, like not sure like really what was happening. Yeah, yeah. Like it's not like he's like running into his garage or there's like any indication

that he like saw the police officer, thought the police officer was after him and is trying to evade. I think there's also some uncertainty about whether that argument was encompassed within the question presented, which was focused on whether the categorical rule of the California Court of Criminal Appeals was correct. And that rule was all misdemeanors categorically justify warrantless entry. So, you know, perhaps all of these reasons, some of them in combination, unclear. Another point about the concurrence is that the chief was joined by our boy Sam, which made me wonder whether the two are maybe mending fences after Justice Alito's

angry tirade directed at the chief in the ACA case. But not by name, but definitely directed. Oh, yeah. No. Yeah. Not so subtle there. Can I just say, Leah, so I wasn't on the Monday show, but I was so glad that our listeners got a chance to hear something that you said, you know, kind of when the recording was off during our live show at Yale, which is like this podcast is in some ways like a long process of you working through having lived through the ACA as a law clerk for Justice Kennedy. I just like, it was not yet. You had not yet said that publicly, and I'm so glad you did. And I love that. Yeah.

And Sam too. Wait, exactly. Many feelings. And he's accumulated more feelings after King versus Burwell and California versus Texas. But- Oh my God. Can you imagine the next one

if they ever take one again? Oh. You didn't see that. Leah's eyes just got like enormous. It's actually terrifying to contemplate. It really is. Okay. But at least right now-

Yes. There seems to be some like fences mended. Right. Bridges built between Roberts and Alito. Yeah. And you know, the chief concur bridges built between Roberts and Alito. Yeah. And, you know, the chief concurrence had some real peak Alito vibes of like identifying alternative grounds on which the criminal defendant would lose. So, you know, again, maybe they're recognizing some

previously, you know, overlooked common ground. Anyways, mentioned the Kavanaugh concurrence. You know, he kind of responds to the Roberts concurrence and says he doesn't see any difference between the chief justice's approach and the court's approach, given that in most cases of flight, the majority opinion seems to imply that warrantless entry would be fine. Justice Kavanaugh's concurrence in this Kavanaugh way also went out of its way to be like, in his thoughtful opinion, the chief justice concludes, it's just like, okay. There was actually a fair amount of that from several justices this opinion hand down day, which made me wonder if they had read the Joan Biskupic story about the rise of the justices pointing fingers at one another and accusing each other of like being nasty or like unprofessional or like not following the law and wanting to kind of avoid another such story or avoid that perception. Slash sort of overcompensate in kind of awkward ways. Exactly.

So one open question after this opinion is whether there is a categorical rule allowing warrantless entry where police are in pursuit of fleeing felons, that is, persons suspected of committing a felony. Justice Kavanaugh insists there is such a rule. The majority suggests that the common law had such a rule, but in its discussion of precedent says we've never adopted such a rule and leaves some uncertainty about that. So, you know, kind of one question that remains. And then in light of this opinion coming from Justice Kagan, I have arrived at a new theory of opinion assignments

that I wanted to float, which is, does the court assign opinions to the justice who selected the amicus appointment in a case? So that happened here. Justice Kagan selected her former clerk, Amanda Rice, to argue this case. That happened in Terry, the First Step Act case where Justice Thomas selected his former clerk, Adam Mortara, and wrote the opinion. And this happened in another Opinions Today, Collins, where Justice Alito wrote the opinion after selecting his former clerk, Aaron Nielsen, as amicus. So I just wonder if there's something going on there. It's such an interesting theory. We could easily figure out based on like the most recent couple dozen amicus appointments

if in fact that holds. Stay tuned for the findings. Yeah. But I think you're right. Certainly this term that seems to be a theory that really holds. So you, I know Leah, really track the sittings and the assignments growing out of each sitting. So do we know anything? Just a little bit more.

It's harder to do this year because there are fewer cases that were argued. But that means Brnovich, the Arizona Voting Rights Act case, is most likely going to be written by either Justice lose. The question is just like, how bad will it be for voting rights? Right. Yeah. A Thomas or Alito opinion there could be pretty devastating. Yeah. We will find out, you know, either Friday or Monday or maybe into next week. Okay. But before we move on, actually, I just wanted to add a couple of additional thoughts, kind of like just about the structure of the opinion in the Fourth Amendment case we were just talking about. So one, I have to say that I appreciated the way that Justice Kagan led with precedent.

She sort of says, look, let's start with what the court has said about the Fourth Amendment, about the core purposes and values that underlie the Fourth Amendment and not with common law practices at the time of the framing of the Constitution. And that's meaningful, right? Those were really central to the argument in the case. And she talks about the common law, but she talks about it in a way that makes clear that what is more important is kind of, again, the kind of core principles and values of the Fourth Amendment and the court's own Fourth Amendment cases. And I just think that's really good for stability in the law, really good for a general kind of stare decisis culture to say, we start with what we've said, and then we kind of peek at history, you know? And that she gets, well, either a unanimous court

or, you know, Dahlia Lithwick has referred to phonanimity, right, or opinions being phonanimous, which is kind of what this case is, right, because Roberts so vehemently disagrees and yet, you know, does technically concur. But Gorsuch doesn't see fit to write separately about how the court really should start with the common law, you know, which I actually. But Gorsuch doesn't see fit to write separately about how the court really should start with the common law, you know, which I actually thought was kind

of significant. So she then, after kind of talking about the court's precedents, asks about kind of framing era common law. And also her discussion makes really clear that that history is inconclusive, right? She says the common law in place of the Constitution's founding leads to the same conclusion that law may be instructive in determining what sorts of searches the framers of the Fourth Amendment regarded as reasonable. But sometimes she says it doesn't reveal a clear legal rule. She says we find it challenging to map every particular of the common law's treatment of warrantless home entries. So I think it's refreshing in its acknowledgement of how inconclusive the history is. And it's refreshing, I think, in the kind of secondary status that it accords to the history. But she, you know,

takes it seriously. And so I think it's just kind of a very well executed opinion that keeps, you know, this very kind of originalist court together for the result that she reaches. And, you know, again, there's just a lot of qualifiers that I think are important about sort of the limits of what kind of the common law will tell us. Yeah. Okay. So maybe let's move on to Mahanoy Area School District versus BL. The second opinion that we got this morning, this was a big win for the salty cheerleader, another big majority opinion for our boy, Steve.

So this is a case just as a reminder about the cheerleader who, in this kind of peak of frustration after not making the varsity cheerleading squad, wrote and shared on Snapchat the sentiment F cheer, along with F school and a few other things. And during its brief e wrote and shared on Snapchat the sentiment F cheer along with F school and a few other things. And during its brief ephemeral time on Snapchat, this message made its way back to school administrators and the school suspended her for a year from the cheerleading

squad in response. I just wanted to note on that, you know, it making its way back to the school, the opinion by Justice Breyer kind of recounted like what dirty little snitches a lot of high school students are like, you know, it was about how other students took screenshots of the snapshot and showed their parents. I was kind of general right now that it's actually like a little dishier than that, right? That sort of recounting of the facts, right? Breyer's like, yeah, another girl on the squad took a picture of the snapshot, showed her mom, who was the cheerleading coach. They were like really offended by it. It is an incredibly petty sequence of events. And the pettiness of the kind of response, the sort of overbearing response by the school was a source of obvious frustration on the part of a number of justices during the

oral argument. And that does kind of come through, I think, in the prior opinion. She's suspended from the squad for a year. She brings this First Amendment challenge. She wins in the courts below. The Third Circuit finds that the school's actions violated her First Amendment rights and actually went on to find that schools actually can't discipline students at all for speech that occurs off campus as this speech did. So that really was the kind of larger question in this case, right? Whether, you know, this discipline violated the First Amendment rights of this young woman, but also what, if any, disciplinary authority schools have over student speech that occurs off campus. So the big Supreme Court precedent here is a 1969 case, Tinker v. Des Moines School District, in which the court held that students do have speech rights at school, right, when they're

attending public schools, that they don't leave their constitutional rights at the schoolhouse gate, in the words of the opinion. But Tinker also went on to say that schools could regulate student speech if the speech created a substantial disruption, even if that disruption resulted from the content of the speech. But again, in this case, the Third Circuit said that the Tinker test didn't even apply because the speech occurred off campus. So as I said, Justice Breyer had the majority opinion finding for the student and giving some general guidance about how these cases need to be decided going forward. And I have to say, I thought it was honestly kind of a delight to read. And I say that,

I'm going to like guiltily confess here that I haven't always felt that way about Justice Breyer's opinions. I think he's great. I don't always like enjoy reading his opinions. This one, I really, really enjoyed reading. So basically, bottom line, the court finds the tinker and the other student speech cases, right, all of which affirmed that students do have First Amendment rights, but that schools have substantial regulatory authority. And in those post-tinker cases, actually, the court invariably sides with the schools that are trying to discipline students for their speech. But those cases do apply here, even though the speech technically occurs off campus. So

students obviously do retain their First Amendment rights off campus. But so too do schools retain some degree of disciplinary authority if they need to respond to off-campus student speech. And the court actually provides some detail regarding when schools might be justified in taking certain kinds of action to respond to student speech. So the opinion mentions bullying, harassment, threats, cheating. And, you know, we talked about this when we previewed the case. It actually seemed to us important that the school both vindicate the student's speech rights, but also make clear that under certain circumstances, schools aren't totally disempowered from responding to student speech

in the context of the kinds of issues that the court identifies here. So the court says, look, we're not going to like demarcate in any real detail the bounds of school authority in a spatial or temporal sense. Like we're not going to say on the way to school, schools can regulate if students are in transit or if they're on field trips, but not otherwise. Like we're not going to try to draw those lines, especially in the wake of this year of largely computer-based learning. Those lines are impossible to draw anyway.

And I just appreciated the kind of foresight the court had in not trying to draw those lines. So Justice Breyer says, we do not set forth a broad, highly general First Amendment rule stating just what counts as off-campus speech and whether or how ordinary First Amendment standards must give way off-campus to a school's special need to prevent, for example, special disruption of learning-related activities or the protection of those who make up a school community. And there were kind of echoes there of him agonizing at the oral argument about having to write a First Amendment treatise about this area of law. But he does say, look, you know, I'm going to give some general guidance. And I thought it was actually good, sensible guidance. He says, look, a school in relation to off-campus speech is not like in loco parentis in the same

way it is when a student is on campus. So that means that off-campus speech is not like in loco parentis in the same way it is when a student is on campus. So that means that off-campus speech will generally speaking happen within a zone of more parental than school-related responsibility. Parents will typically be in a position of responding to and controlling, I suppose, if appropriate, their children's speech as opposed to schools or school administrators. Second, he says, from the student speaker's perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day. So courts have to be more skeptical of a school's efforts to regulate off-campus speech, right? So even though the opinion affirms that schools do have some regulatory authority off-campus, it is significantly less robust than

their regulatory authority with respect to on-campus speech. And third, he stakes out a position that I have to imagine developed in the context of some exchanges with his colleagues as his opinion evolved. But he says the school has an interest in protecting a student's unpopular expression, especially when the expression takes place off campus. And then he goes on to say, America's public schools are the nurseries of democracy. A representative democracy only works if we protect the marketplace of ideas. This free exchange facilitates an informed public opinion, which when transmitted to lawmakers helps produce laws that reflect the people's will. There were sort of echoes of his National Constitution Center exchange. I thought,

you know, he's like so optimistic about the power of robust exchange of ideas, you know. So, you know, he then quotes, he says, schools have a strong interest in ensuring that future generations understand the workings and practice of the well-known aphorism, I disapprove of what you say, but I will defend to the death your right to say it. Breyer then goes on to say, although this quote is often attributed to Voltaire, it was likely coined by an English writer, Evelyn Beatrice Hall. Anyway, so taken together, basically what this boils down to is schools have authority off campus, less authority than they do on campus, but not no authority,

which is essentially what the Third Circuit has said. And then he goes on to kind of apply this and says, look, here, you know, I don't know, what was the school's interest? An anti-vulgarity interest because she swore in the Snapchat? You know, parents can worry about that. Any school interest in instilling good manners is outweighed by her interest in free expression. There was no evidence of substantial disruption. There was very little evidence of impact on team morale. And so for all of these reasons, the lower courts were correct to find there had been a First Amendment violation. Briefly, there's an Alito concurrence that offers this kind of like weird Blackstonian excursus on the origin of the in loco parentis doctrine. There's this like multi-page reminder of the primacy of the parent in matters of child

rearing, which, you know, as I said, I think the majority opinion actually totally agreed with. So I'm not sure why the need to spend, you know, a number of pages on it. And what I took to be kind of one of the core concerns of the Alito concurrence is that schools are going to try to punish unpopular student speech, which I presume Alito imagines to encompass advocacy of conservative causes, right? He has made clear, including at his FedSoc speech, that he thinks that that kind of speech is under threat. So he wants to make clear that schools can't single that speech out again. I think that Breyer opinion made that crystal clear. And Thomas dissents, arguing, as he has elsewhere, that schools have near

plenary authority to discipline students on campus and less sweeping, but still, you know, quite broad authority over this sort of off-campus speech that the school should win here. in exchanges with his colleagues that America's public schools are the nurseries of democracy to kind of be a response to the Alito concurrence, because Justice Alito's concurrence seems to say, well, look, parents have a choice about whether their kid's speech is regulated because they can decide not to send their kids to public schools. But of course, like one, that choice isn't really available to everyone. And so I read, you know, Justice Breyer's kind of celebration of public schools as in part a response to that. And then the closing of the Breyer opinion was I really enjoyed,

I also really enjoyed this Justice Breyer opinion was it might be tempting to dismiss BL's words as unworthy of the robust First Amendment protections discussed herein, but sometimes it is necessary to protect the superfluous in order to preserve the necessary. And he quotes a Holmes dissent. So shorter Justice Breyer, save the cheerleader, save the world. But I really enjoyed this opinion. I think it was completely right not to adopt any kind of broad rule. I think they nonetheless did a good job

of articulating principles that should really guide this and in some ways might have, I think as we suggested when we previewed the case and discussed the argument, bolstered the tinker test and saying like, no, you actually have to find some real evidence of actual disruption in order to punish students' speech. It can't just be speculation

about what students might think or how they might respond. I do, however, feel like we are going to have to come back to this case because our resident cheerleading expert isn't here. Also, I feel like if I tried to work in bringing on references, I'm not sure if you would just stare blankly at me. I know that that's a movie about cheerleading. Is that right? Oh, my gosh. Alyssa, where are you? Okay. Justice Breyer works some spirit fingers magic in. That was one thing I wanted to say. I feel like maybe you would have caught that. Yes, yes. Okay, great. Yeah, got that. Second, this is a cheerocracy, right?

No, no, no idea. See, that's like actually relevant, right? You know, it's when Torrance says, this is not a democracy, this is a cheerocracy. Okay, it's a good line. Yeah, nope, just never heard of it. Right, it's a good line. And it's apt here, right?

Cheerleaders for democracy, right? Like, think about it. Anyways, I wasn't quite sure how to work in one of my favorite lines, which was, you're a great cheerleader, Erin. It's just that maybe you're not boyfriend material. But anyways, so listeners, welcome suggestions. He's a great cheerleader and a great Supreme Court justice. Although maybe not Supreme Court justice for perpetuity material. I don't know.

Maybe not. Yeah. Although he does seem to be enjoying himself, doesn't he? Yes. No, absolutely. But like maybe as we've suggested going out on HiNo, these are some great opinions, right? Yeah. These are great.

Yeah. He's doing – he's given us some great stuff and, you know, still have a number to go. Yeah, and he overcame his greatest fear, writing a legal standard for this case. It really, I mean, when you asked about, you know, sometimes you wonder why the court takes cases and, you know, obviously, I don't want the court issuing unnecessarily sweeping broad constitutional holdings. I also do get frustrated, I think we all do, when the court issuing unnecessarily sweeping broad constitutional holdings. I also do get frustrated. I think we all do when the court is so sort of fact bound and its disposition

of particular cases. This is like, I think, a kind of perfect happy medium in which like it's responsive to the facts. It provides general guidance. I mean, I think I haven't spoken yet to any like school administrator. So I guess we'll see on the ground sort of how this plays out. But it seems to me to do everything an opinion like this should do, actually. Yes. Yeah. So let's move on to Collins v. Yellen, which has less riveting facts, but also a really interesting case. Collins v. Yellen is a case that involves most significantly the question of whether the structure of the Federal Housing Finance Agency, or FHFA, which has a single head who's removable only for cause, is constitutional. The background of the case is actually pretty complicated, so we're going to simplify it because the structural

constitutional question both kind of seemed to be going into the case and actually was once the opinion issued really the heart of the case. Briefly, the background is that the case grows out of the 2008 housing and financial crisis and a provision of the 2008 Recovery Act that created this independent agency, the FHFA, which was tasked with regulating the mortgage giants Fannie Mae and Freddie Mac, and also empowered the FHFA, if necessary, to step in as their conservator or receiver. So at the head of the agency, as I mentioned, is a single director, removable only for cause, just like the Consumer Financial Protection Bureau, CFPB, who structured the court and validated last year in CELA law.

Okay. So FHFA gets created, gets given these authorities, does then place Fannie and Freddie into conservatorship, negotiates agreements under which the Treasury Department gives these companies capital in exchange for preferred shares. And then over several years, changes the terms of these agreements, culminating in basically a deal that is referred to in the case as the Third Amendment. Comes up all the time, came up all the time in oral arguments, all the time in the opinion. I can't not think about quartering of soldiers every time the Third Amendment comes up. In fact, that is not what this case is about, nothing to do with quartering of soldiers. But this Third Amendment is what the lawsuits at issue in this case kind of grow out of. So some Fannie and Freddie shareholders challenged this agreement, the Third Amendment, and they brought both a statutory argument and a constitutional argument. We will briefly mention the statutory argument, but as I said, the constitutional argument is where the action in the case is. Okay, so the court today, in an opinion by Justice Alito with different majorities for different parts of the holding, first rejects the statutory argument that the agency exceeded

its authority as conservator by approving this Third Amendment. The court basically says, we conclude that under the terms of the Recovery Act, the FHFA did not exceed its authority as conservator. It's not necessary for us to decide, and we do not decide whether the FHFA made the best or even a particularly good business decision when it adopted the Third Amendment, just that it didn't exceed its statutory authority when it did that. Okay, so that part of the holding is unanimous. On to the constitutional question. Okay, so a 6-3 majority composed of the conservative justices on the court holds that the structure of the FHFA is unconstitutional for the same reasons the structure of the CFPB in CELA law was The court says Sella Law is all but dispositive.

And why? Because this single member director structure where the single director has protections against presidential removal at will is a violation of an atextual principle that some of the justices have found in the Constitution that the president must have basically unlimited control over executive branch officials, at least those performing kind of traditional executive functions,

and that this for-cause removal protection meaningfully encroaches on presidential power in a way that is inconsistent with constitutional design. So the court declines the invitation to distinguish cellar law, basically says, ah, the nature and the breadth of an agency's authority isn't dispositive in determining whether Congress may limit the president's power to remove its head, and goes on to kind of wax poetic, as it has in other such cases, including most recently Selva Law, about the kind of centrality to constitutional design of the president's removal power. So the court says the president's removal power serves vital purposes, even when the officer subject to removal is not the head of one of the largest and most powerful agencies. The removal power helps So, you know, this control is essential to subject executive branch actions to a degree of electoral accountability.

So, you know, I feel like we're a little bit of a broken record on this, but the court, I think, makes the same core error that it made in Sella Law, to fixate on this idea of the president as electorally accountable and based on that conclusion to find that any kind of constraints that Congress, with the signature of the president, might impose on the president's removal authority is thereby unconstitutional, I think is just inconsistent with constitutional text, structure, history, all of it. And yet the court essentially doubles down on kind of what is said in Sella Law. The court declines to take an off ramp that we talked about when we previewed the case. So this amendment was actually adopted when the FHFA was led by an acting director who was removable at will. And there was an argument that that mooted the constitutional question in this case. The court basically says, I think the court says, this part is actually I find a little bit puzzling, but basically says that the alleged harm of this third amendment continued while the agency was led by several Senate-confirmed

directors, right, who, you know, were occupying this position that did have this removal limitation attached to it. And therefore, you know, the fact that the original amendment was adopted by the acting director doesn't moot the constitutional question. Yeah, they say, like, in addition to enactment, there's implementation. And, you know, if it was, it was implemented by someone who was not removable at will, that is kind of like harm they're remedying. Exactly. And on the remedy question, so the court says, right, the agency structure is unconstitutional, or at least this provision of it is. But it is pretty interesting on remedy. So the court actually declines to throw out this Third Amendment in its entirety, instead remanding for the lower courts to determine what sort of relief these shareholders might be entitled to, based in part

on what we were just talking about, the fact that, you know, there were these, there was an acting director, there were then Senate confirmed directors, you know, maybe the fact that they were, you know, they weren't appointed unlawfully, the court is clear to say that, but the positions they occupied, right, had this constitutional defect. And so maybe there's some harm in that they were constrained in what they would do with respect to implementation by this, you know, or what the president could direct them to do by this limitation. Like, it's totally unclear, and I would not want to be a lower court trying to figure out what, if any, remedy to award based on this guidance from the Supreme Court. But the court does essentially completely dodge at least taking the first pass at fashioning a remedy, but does make clear, right, it's not going to just throw the entire amendment out, which I think would have some have suggested

would have had, you know, really kind of cataclysmic consequences for the housing market. Yeah. And I think like this, this remedial question is super interesting and important and something that we will come back to, you know, not on the same day that the opinion is released in the same day that the Arthrix remedy on, you know, how to fix the constitutional problem with the appointment of administrative patent judges is something that we will come back to just because I think this suggestion that the remedy when, you know, some government action is either created by or implemented by someone who is, you know, subject to unlawful removal restrictions is not to just vacate or set aside the government action is potentially quite interesting. So Justice Gorsuch peels off and he says, you know, I actually think the proper remedy is just vacatur of the agency action, but the majority of the court doesn't agree. And I think there's some interesting discussion in the case about whether this is a departure from the court's prior cases. I think the court says, well, we've always just taken as a premise that you can vacate the unlawful agency action, but we haven't said that you have to. I think this possibility that actually the party who is subject to the regulation that was implemented or created by the person who was

unlawfully appointed creates some potential interesting questions about justiciability. That is, how are they actually harmed by the removal restriction if they can't obtain a judicial decision setting aside action taken by the person who is subject to the unlawful removal restriction? That is, like, what exactly is their injury in a world in which the government action is allowed to stand? How would it be redressable by a judicial decision? Now, obviously, you know, there is and should be some conceptual space between standing and remedy. And here, the court preserves the possibility that, you know, setting aside the government action might be required in some circumstances, if you conclude the president didn't have enough control over the implementation. But if you conclude the president

had enough control over the implementation, when the implementation was by someone who is not removable for cause, like, doesn't that undermine your merits inquiry anyways? Because you're saying the president doesn't have enough control over someone who is not removable at will? Like, it's just, I think, a potentially jurisprudentially and conceptually super interesting question that could affect different areas of law ranging from justiciability to remedies to severability to the merits. And it's just, I think, worth some time thinking about like exactly what the court is saying, whether it's new, what are the implications for these cases going forward. Justice Kagan enthusiastically embraces this proposition because she's basically like, this is a way to limit the damage of the court's insane removal jurisprudence. Because if we're never going to set aside any, you know,

government action taken by people who are removable only for cause, then fine, right? You know, what you're doing is just... Like a tree falling in the forest. Yeah, it doesn't actually... Yeah, yeah. I'm sure she's offended by the incorrectness of the analysis, but certainly it could blunt its impact. No, I totally agree. And this is one of those things that I was saying right before we started recording. Like, I just feel like I need to kind of, and I think you feel the same way, Leah. Like, we kind of just need to puzzle through this kind of remedial question more.

And Thomas has this interesting concurrence that I also feel like I just need to spend some more time with, you know, similarly suggesting that, like, you know, removal restrictions, even if unlawful, don't necessarily render agency action unlawful. And in terms of the Alito, I think it seems to be sort of suggesting that maybe because this is, I think, just sort of a retrospective kind of damages inquiry. Anyway, there may be some way to try to figure out what damages may be. But Kagan, you know, really very much, as you said, seemed to suggest that like, no, there's no harm. And so there is no remedy. And that's, you know, I read the court's opinion consistent with that. So lower courts, please go ahead and feel free to find that. And, but it is all extremely interesting. And I think maybe a good topic for like a summer episode to sort of spend some time with. her teeth and concur in at least the holding that Sella Law, you know, controls the outcome here. She does not join the court's analysis. She says it is mistaken. It is mistaken in its kind of

political theory. It is mistaken in its extension of Sella Law. She says, I will subscribe to decisions contrary to my view or precedent, fairly read controls, and there's no special justification for reversal, but I will not join the majority's mistaken musings about how to create a workable government. I mean, she's just like, she's cold. She had some real digs at Sam here because, you know, not just that. So first, this has strong stare decisis. It's not for suckers energy, which is kind of her thing. It really is her thing. But interestingly, you know, she says, like, look, I dissented and dissented vehemently in Selah Law.

But, you know, I will accept the decision now. And then she goes on to say fidelity to precedent also places demands on the winners, like not just the people who were on the losing side of the case. She says they, that is the winners, must apply the court's precedence, limits and all, wherever they can rather than widen them unnecessarily at the first opportunity. And she's basically like, look, the court doesn't even bother to analyze whether the FHFA director exercises significant executive power and just kind of minimizes that part of sale of law. And, you know, so anyways, it was kind of like an interesting point that she made about, you know, what is the obligation to precedent, you know, for people who are in the majority as well. Definitely. And then so do Myron Breyer disagree, I think, a little bit more full-throatedly with the majority opinion, or at least express

more full-throated disagreement. Kagan probably disagrees full-throatedly too. But she makes a, you know, I think a institutionally sound decision to go along in part with what the majority does. And, you know, certainly I think driven, it's a little bit like the remedial tail wagging the dog of the join, right? She's, you know, there's no way she joins this if the court decides to do something crazy with remedy. I just think that this decision is in some ways just a, you know, kind of extension, not just application. I agree with her extension of sale of law, but just a little step down the same path the court has been on with respect to sort of this, you know, kind of unitary executive idea. But I also think that there could be something potentially even more interesting afoot in terms of what the different opinions say about them. Well, so then what's the remedy?

On the remedial point, you know, you said you don't envy the lower court who has to decide this remedial question. Justice Kagan lays out how she thinks they can and should resolve this based on what they've already said, basically saying like the implementation was done in conjunction with the treasury head and that person is subject and was subject to presidential removal. So, you know, there was an adequate amount of presidential control here. So no relief. Right. Yeah, no relief. I did want to flag Security Administration, the Office of Special Counsel, the Comptroller, and others. You know, the Social Security Administration, in particular, is led by a single officer who is not removable at will by the president.

And, you know, the court says, none of these agencies is before us, and we do not comment on the constitutionality of any removal restriction that applies to their officers. You know, the court says none of these agencies is before us and we do not comment on the constitutionality of any removal restriction that applies to their officers, you know, not exactly saying those things might be different. And so I think it's very fair to expect that there will be challenges there. And I think that there the court's remedial discussion is even more important because imagine if the court invalidates the removal restrictions on the social security administrator, are you really going to invalidate every single Social Security benefits determination taken by that person? Like, that would be insane. That's not possible. And so that's where, you know, Justice Kagan

basically saying, like, look, this remedial discussion is basically saving us from, like, utter insanity and blowing up the government, I think really comes into play. Yeah. And we should flag that missing from that footnote list are independent agencies with multi-member heads, right? So the Fed is, of course, the most important of these, but the FTC, the FTC, the SEC, all of these agencies. And the court, for reasons that I think don't actually totally hold up, but I am relieved from sort of a pragmatic perspective,

the court has made clear that it's existing, primarily Humphrey's executor, precedent upholding the constitutionality of those kinds of independent agencies that are led not just by one individual, but, you know, a group, remain good law and sail a law. The court, you know, again, for reasons I don't find totally convincing, but does reaffirm that principle.

So none of those, I don't think, are in the court's crosshairs, just because you sort of mentioned chaos and stability. Like I don't think the court is in any danger in the short term of like burning down the Fed, although Thomas and Gorsuch would probably do it. But I don't think anybody else would. Alito, I don't know. No, I don't think so. Yeah, hard to say.

Hopefully we're never going to have to find out. It depends how angry he is at John Roberts on that day, right? Whether he's like emoting all over the U.S. reports or whether he's able to control his emotions. This is why we can't trust men to be Supreme Court justices, right? Whether he's like emoting all over the US reports or whether he's able to control his emotions. This is why we can't trust men to be Supreme Court justices, right? Like they're so just a little bit too erratic, too emotional. Yeah, I need to need to rein it in. Yeah, should we go on to the last one? Let's do it. Okay. So the last opinion we got has real it's a workers party now energy slash destroying unions is necessary to enforce the Voting Rights Act energy. And that would be Cedar Point Nursery versus Hasid, in which the apparently extremely moderate Roberts Court, you know, digs another knife into unions. So

Cedar Point is an important case about a California labor regulation, and the reasoning that the court adopted to call into question slash require the government to pay for that regulation could embrace a big swath of other regulations. So this case involves a taking-cloths challenge to a California regulation that granted labor organizations a right to access agricultural employers' property to solicit support for unionization. They can access the property, one specific part of the property, where workers gather the hour before work, after work, or at lunch. That's a maximum of three hours per day and only 120 days a year. The regulation grew out of a campaign, as we've noted before, by the United Farm Workers and Cesar Chavez. Farm workers were excluded from rights granted in the National Labor Relations Act,

which dates back to the 1930s when Southern segregationists insisted that Black farm workers be excluded from those protections. California maintained that its labor regulation involved merely a regulatory taking that regulated the use, that is, limited the owner's use of the land and therefore didn't require compensation under the takings clause. The takings clause says when the government takes your property, it has to pay you just compensation. Generally, regulatory takings don't trigger the compensation requirement. The court balances factors like the economic impact of the regulation, the character of

the action, interference with investment expectations, so on and so forth. A majority of the court, however, in a 6-3 opinion by Chief Justice Roberts says, no, this California regulation is a per se physical taking because the government physically acquired the property by giving other persons a right to invade the grower's property. It doesn't matter if the physical intrusion is permanent, temporary, continuous, or sporadic, right? Physical invasions are physical invasions. As I said, the opinion is 6-3 with the conservative justices in the majority. Justice Breyer wrote a dissent for the three liberals. Justice Kavanaugh concurred, and we're not going to talk about it because it just floats a theory that he floated an argument that no one else was interested in. Anyway, so this is a theory that

the majority adopts. Basically, the government can't authorize people to enter private property, even for lawful activities, without compensating property owners. And it elevates one property, right, the right to exclude over another, the right to use one's property. Because basically what it's saying is, you know, when the government is regulating the use of a land, right, that's regulatory taking. But when it involves the right to exclude, right, someone accessing the property, that's a per se taking. And so, you know, the opinion cites the court's previous opinion in Tahoe, which upheld the government's ability to prohibit building on land for three years.

You know, that's a use restriction, not an exclusion restriction. This is potentially a huge deal. How huge a deal it is will depend on two things. One is how the court interprets its announced limits on this theory, and second, what the remedy would be for per se takings. So the court announces several limits on the theory. That is, when even though there is a physical intrusion, it might not constitute a per se taking. Think, for example, of laws requiring inspections or non-discrimination requirements that require business owners to let certain people onto their land. And the question is, are those per se takings in light of the court's theory?

And depending what the court says about these limits, you know, they may or may not be. So the first limit the court announces is we're not, you know, undoing the distinction between trespass and taking. So isolated physical invasions, those are trespasses, not takings. Maybe the court means like unintentional or like not ex ante authorized takings. But anyways, the second limit is the court says many government authorized physical invasions will not amount to takings because they are consistent with, quote, longstanding background restrictions on property rights. And the court mentions two. One is, you know, cases of necessity. And second is instances where the government is carrying out an arrest. But of course, right here, the entire thing turns on. Well, how do you define what background restrictions are and which are longstanding? Like, do they include statutes just to the common law? How longstanding do they have to be?

Like California law, for example, its trespass law excluded union activity. So it's not actually trespass, you know, to conduct union activities under California's trespass law. Like why wasn't that a background restriction on property rights that defined the scope of the relevant property rights? There are also common law cases that say it's not a trespass for state service workers to go onto property to help migrant workers. You know, this was a famous property law case, State v. Schack, you know, from New Jersey in 1971. So that's the second limit. And again, like how sweeping the court's rule will depend on, you know, what it says count as longstanding

background restrictions that, you restrictions that basically limit the scope of a property right, such that physical invasions don't end up violating that right. I think the third limit is going to be where all of the action is. So the court says the government may require property owners to cede a right of access as a condition of receiving certain benefits without causing a taking. So obviously, this kind of shifts the question from the previous question under the court's cases, which is, is this a physical taking or appropriation or is it a regulatory taking? And now the question is, well, what benefits, right,

can the government give to a landowner as a condition for access rights? Like, do they have to be benefits to the owner in particular? Can they be benefits to society writ large? Do they have to be like property interest to the owner? So, for example, like you can actually have this land or use this land in a particular way if you agree to these conditions. On one hand, the court seems to say we're going to construe this narrowly because it says everything could be reframed as a benefit. And in fact, this could be reframed as a benefit.

It's a regulation designed to improve workers' conditions, sustain labor peace, and so on, and like that in years to the benefit of the growers and society. But then it also says, quote, under this framework, government health and safety inspection regimes will generally not constitute takings. When the government conditions the grant of a benefit, such as a permit, license, or registration on allowing access, you know, that's fine. But then it also says, well, you consider like the nexus and proportionality that is like how severe the restriction is. And like, this made me wonder, like, could California turn around and turn this regulation into a licensing requirement, basically say, you can only use land for agricultural purposes, or like get a permit to use the land for these purposes, if you allow access to union

organizers for these limited purposes. I mean, you can imagine like different kinds of like benefits or whatnot permits that the government conditions on these uses. Yeah, I don't think there's anything in the opinion that prevents California from trying. But I also just think that this discussion in the opinion sort of seems to misclassify a lot of the kind of the nature of regulation. Like lots of regulation isn't like, you know, conditions attached to licenses or permits. They're outright directives that happen, you know, by virtue of rulemakings that are generally applicable, not the result of conditions attached to the grant of a particular license or permit or

other kind of benefit. And so it would just seem potentially, I don't know that this opinion suggests that, you know, I hope the opinion does not suggest that only the government can only, you know, mandate access to physical space in the context of a regime like this, because there is this, you know, like most health and safety regulations would generally not constitute takings. I would like to read that as a standalone sentence. And then as, you know, an illustrative example, conditioning the grant of a benefit such as permit, license, or registration on allowing access as opposed to saying only under those circumstances are government health and safety inspection regimes not taking. I just don't quite know how to purse that language, and it's hugely important, as you say, just like in a range of different areas. Yeah. And the way I kind of think about this is, you know, I agree, of course, most government safety and health inspections and other regulations, of course,

should be perfectly constitutional. But the more that's true, that is, the less this court's opinion and reasoning actually calls into question other regulations, the more this just looks like unions bad, right? And like any activity or any laws that protect unionization are takings and not permissible and don't supply any benefits, whereas all the regulations fine. And so, yes, that's less sweeping, but it's also less principled and I think exposes kind of the court's hostility to workers' rights. So, you know, Justice Breyer, for example, in his opinion, lists a bunch of regulations that he thinks, you know, might be called into question by the majority's ruling, talking about, you know, meat inspections, workplace safety inspections,

inspections of coastal wetlands, you know, inspections of foster care facilities, like, you know, you go on and on. And, you know, again, the majority seems to say, well, most of them are going to be fine. You know, and then I also wonder, know, again, the majority seems to say, well, most of them are going to be fine. You know, and then I also wonder, like, what does this mean for the National Labor Relations Act kind of permissions that, you know, allowed for union access to an employer's property where it's impractical to contact employees outside of work, you know, like employees on an oil rig? Like, are those also now takings?

Also, what does this mean for Title VII or the Civil Rights Act of 1964, which, as I was suggesting earlier, you know, require business owners to open up their property to people that they would prefer to exclude, you know, on the basis of race, sex, religion, sexual orientation, or so on? You know, what about fair housing laws that, again, prohibit evictions on the basis of certain characteristics. What about rent control laws? You know, what about laws that require people to grant access to conservationists or like environmentalists or environmental inspectors? And, you know, the court seems to say, well, look, in some cases, a business is open to the public. But whether that's true depends on like

what the business's policies are. The reason why the business here isn't open to the public is because they say we don't want union organizers and we don't want other people. And why isn't that true in cases where a business wants to exclude people on the basis of certain characteristics? So, you know, again, I don't think the court is going to invalidate the Civil Rights Act of 1964 on this theory and say it constitutes a taking, but that they are not, you know, suggest to me this is partially about anti-union hostility, you know. And Justice Breyer basically points this out, like, why isn't labor peace a benefit that the government is offering here?

And why isn't, you know, the condition that you get to use this land for agricultural purposes? And, you know, we are doing this as a benefit to you, you know, to your employees and so on. You know, another thing I wonder about is tenant protections. What about laws that say you can't exclude a tenant based on a previous conviction? It's just that uncertainty is what the court is creating, and it is moving all of that uncertainty into these new categories it has created. What's a benefit? What's a condition?

What's a proportional condition? What are longstanding background regulations? All of that is going to create some uncertainty. And that uncertainty is going to be sorted out by this court, which, you know, again, is not exactly, you know, welcoming of workers' rights, unions, organizing, all that stuff. So it's just, yeah. You know, the line of cases that culminated in Janus was obviously a First Amendment line of cases here. The constitutional hook is the takings clause. But the cumulative effect of the court's cases, this is obviously, I think, the first and there could be others in this area. And Janus was not the last First Amendment case involving union organizing rights. I think the court will have more and the lower courts have had more since Janus.

You know, the cumulative effect has been devastating for organized labor. Yeah. And, you know, Janus was obviously grounded in the First Amendment. And, you know, sometimes people say the Roberts Court is very protective of First Amendment rights here, right? However, it is not protective of First Amendment rights. It is property rights that are trumping, you know, the union organizers' First Amendment rights. And so I think like that frame needs to be rethought and you can see the hostility you know to unions and workers and organizing in the court's opinions you know the way the chief describes the union organizers here saying like at five o'clock one morning members of united farm workers entered property without prior notice and you know they

moved to the trim shed calling through bullhorns know, describing this as if it's like some horrific. Right, exactly. And it's like, okay, you know, it's just evident where sympathies kind of lie, you know, so on and so forth. I mentioned that the other possible way of limiting the suspicion is remedies. So when there is a taking, the government has to supply just compensation. Well, what's the compensation here? That is, what are the damages to the landowner? Justice Breyer addresses this in his dissent. He says, I touched briefly on remedies, which the majority does not address, but the employers didn't seek compensation. They only want an injunction. But under the

takings clause, they can take your property as long as they pay you just compensation. So would nominal damages work? Like historically, that was a remedy for trespass, where someone walking onto your lawn doesn't actually like hurt your property, you know, and they're not doing this during business hours. So it's not like your economic productivity is being undercut. And if all of the damages are just nominal damages, then the harm from this decision is relatively low. My guess is that's not how the Roberts court would see it. But hard to say.

Yeah, that's really interesting. So the lower courts will take a pass at that, presumably. Yeah. All right. So we will see whether this 6-3 breakdown is a harbinger of what's to come in the big remaining cases for the term. We've got eight more. We have two more decision days announced and they could add more days next week. I don't know. You think they're going to finish by Monday or you think they'll add another day or two? I think they could. But, you know,

June doesn't end until Wednesday. So there's also not like a requirement that they finish on Monday. But I don't really have an intuition one way or another. Like four opinions on two days doesn't strike me as unworkable, but maybe, you know, the reporter's office wants kind of a break. Thanks everyone for listening. Thanks to our producer, Melody Rowell. Thanks to Eddie Cooper for making our music and thanks to cheerleaders and spirit fingers everywhere. I'm going to try to watch Bring It On before we are together again, because I feel like that'll help the conversation. That also gives you like four and a half hours or maybe just four hours to watch Bring It

On since we will be together again this evening. Oh, that's true. Okay, I'm disgusted. Probably not because of my afternoon watching. Maybe set more modest expectations. Maybe by the term review. Okay, okay. That's my goal.

Term review. By the term review, you will attempt to transform your robotic movements into poetry with your body. You will understand that reference once you watch the movie. This actually sounds like a good film. I feel like I now actually want to see it. Yeah, the movie's The Pooh, so take a big whiff. Again, another reference. Okay, on that note, you're a great podcaster, Kate. It's just that maybe you're not cheerleader material. Bye-bye. That's harsh, but harsh, but true. And on that note, actually, bye-bye. So we will see you next time.

Bye, everyone.