SCOTUS Today: Surprising Consensus Under a Strong Chief Justice

A number of commentators, including myself, have been highlighting the apparent fact that under the strong leadership of the Chief Justice, the Supreme Court is exhibiting what, to many, has been surprising consensus in opinions, even in cases that are publicly controversial.

This has led to cases decided on narrow, fact-specific grounds, applying constitutional avoidance in some cases and multiple partial concurrences or dissents in others, but generally unanimous or near-unanimous outcomes.

Three of the four cases decided by the Court today clearly fit that characterization. The fourth, a property rights case, displays a traditional conservative/liberal split of views, but, as the Chief Justice makes clear, a most respectful philosophical, not political, division.

Lange v. California arose from a highway patrol officer’s warrantless entry into Mr. Lange’s garage. This followed an attempt to get Lange, who had been playing loud music and honking his horn repeatedly, to pull over and stop. Instead, Lange ignored the flashing light of the partrol car and drove a short distance to his driveway and entered his garage. The officer followed, questioned, and arrested him.

The case occasioned the Court to revisit its "exigent circumstances" jurisprudence. Given Justice Kagan’s repeated skepticism during oral argument as to exactly what the exigency here was, it is unsurprising that she wrote the controlling opinion in the case. Rejecting the argument that a suspect's flight always triggers the need for an officer to effect a warrantless home entry while an officer is in hot pursuit, the Court instead held that a case-by-case analysis must apply. Thus, when the totality of circumstances shows an emergency—a need to act before it is possible to get a warrant—the police may act without waiting. Those circumstances include the flight itself. But pursuit of a misdemeanant does not trigger a categorical rule allowing a warrantless home entry. So, we happily get a unanimous result, along with some concurrences, but the lower courts also will be getting a number of cases in which the question of exigency—including the gravity of the offense, the risk of escape or harm to others, and the potential destruction of evidence—will have to be weighed. Flight, at least in minor cases, is not enough, and so Mr. Lange prevails.

Mahanoy area School District v. B.L. is the highly-publicized case of the cursing cheerleader. "B.L.," who was disappointed in not making the varsity cheerleading squad, profanely gestured and voiced her anger on two Snapchat posts. These posts were made from a convenience shop, outside of school grounds and hours. And she didn't even identify her school or any particular person. Nevertheless, the school suspended her, and her parents sued.  

The case was decided against the historical background of the famous Vietnam era armband case of Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969), which held that students don't check their ideas at the schoolhouse door. As to B.L., the Court simply decided the case on the facts and held that while public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school here are not sufficient to overcome B.L.’s interest in free expression in this case.

In other words, as my friend NBC reporter Pete Williams put it, "the punishment didn't fit the crime." Again, unanimity appears to have been achieved by avoiding a blanket rule and instead providing a fact-specific test. If, for example, a future case were to involve bullying or some other issue where off-campus speech would be disruptive at the school or cause personal injury, the school's right to discipline would likely be upheld.

To say that Collins v. Yellin involves complex issues, one need only note that the mere syllabus of the case runs a full six pages, and that there is an array of concurrences in part and in the judgment. I'll try to keep it simple.

After the housing bubble burst in 2008 and a financial crisis arose that led to the threatened insolvency of mortgage lenders Fannie Mae and Freddie Mac, Congress enacted the Housing and Economic Recovery Act of 2008, which created the Federal Housing Finance Agency (FHFA), an independent regulatory agency that could function as a conservator or receiver, with a single Director removable by the President only “for cause.” Soon thereafter, the Director placed Fannie Mae and Freddie Mac into conservatorship and negotiated agreements for the companies with the Department of Treasury under which the companies were provided up to $100 billion in capital and Treasury received senior preferred shares and quarterly fixed-rate dividends. By later amendment, the fixed-rate dividend formula was replaced with a variable one that required the companies to make quarterly payments consisting of their entire net worth minus a small specified capital reserve. A group of the companies’ shareholders challenged this amendment. 

In an opinion by Justice Alito, the Court held that the shareholders’ statutory claim must be dismissed. The “anti-injunction clause” of the Recovery Act provides that unless review is specifically authorized by one of its provisions or is requested by the Director, “no court may take any action to restrain or affect the exercise of powers or functions of the Agency as a conservator or a receiver.” Although there is lengthy discussion among the Justices as to this limitation on jurisdiction, the Supreme Court held that where, as here, the FHFA’s challenged actions did not exceed its “powers or functions” “as a conservator,” relief is prohibited.

Many commentators thought that the shareholders' statutory claim had merit—and indeed the complex arguments that they made concerning finance and economics drew lengthy discussion among the Justices—but it failed. On the other hand, many of those commentators gave short shrift to the shareholders' constitutional claim. They were wrong there, too. The Court held that the Recovery Act’s restriction on the President’s power to remove the FHFA Director was an unconstitutional violation of separation of powers for the reasons described in Seila Law LLC v. Consumer Financial Protection Bureau. 591 U.S. ___.  As in that case, the Court held here that a unilateral agency actor cannot be insulated from Presidential control. Concomitantly, the Court also held that the shareholders had standing and that, given the possibility of future agency action, the matter was not moot. However, given that all of the officers who headed the FHFA during the time in question were properly appointed, there is no basis for concluding that any head of the FHFA lacked the authority to carry out the functions of the office with respect to the amendment at issue. Neither, however, could the Court rule out that the unconstitutional provision of the law could not inflict compensable harm. But, in a pragmatic move, the Court concluded that this question should be dealt with in the first instance by the district court. Thus, the case has been remanded.

Now, let's turn off the sweetness and light, and move to the fourth case of the day, which was decided 6-3 along strict jurisprudential conservative/liberal lines.

Cedar Point Nursery v. Hassid invalidated a California regulation that granted labor organizations a “right to take access” to an agricultural employer’s property in order to solicit support for unionization. The regulation required that agricultural employers allow union organizers onto their property for up to three hours per day, 120 days per year. Growers challenged the access regulation on the grounds that it appropriated without compensation an easement for union organizers to enter their property, and thus constituted an unconstitutional per se physical taking under the Fifth and Fourteenth Amendments. In an opinion written by the Chief Justice and joined by the other five nominal "conservative" Justices (and over a dissent written by Justice Breyer for the "liberals"), the Court's majority agreed with the growers. 

When the government actually takes full possession of property, a per se rule applies: "The government must pay for what it takes." When, however, the government simply imposes regulations restricting an owner’s ability to use his own property, a flexible standard applies under the rule of Penn Central Transportation Co. v. New York City, 438 U. S. 104 (1978), which balances factors such as the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the government action. But when the government physically appropriates property, Penn Central does not govern.

Here, the Court has held that California’s access regulation allows invasion of the owners' property and therefore constitutes a per se physical taking. It doesn't just limit the owners' use of their property, it expropriates, for the benefit of third-party union organizers, the owners' right to exclude, which is “a fundamental element of the property right.” 

Other cases, for example involving a union's right to distribute leaflets at a business place open to public access, are unaffected. The determinative factor here is that the growers' fields are not open to the public. Nor are cases in which a recipient of a public benefit cedes property rights as consideration. This is a pure "right to exclude" case that the majority views as essential to protected property rights.

It is useful to note the difference between the Chief Justice and his allies and Justice Breyer and his. The majority holds essentially that an interference with an intangible element of ownership constitutes a physical taking. The dissenters argue that the regulation at issue doesn't appropriate anything in that it doesn't give the unions or anyone else the right to exclude, only organizers' right temporarily to invade. As the Chief Justice notes, Justice Breyer's view is respectable, but it now is not the law.

The labor lawyers of Epstein Becker Green likely will have more to say about what effect, if any, that Point Nursery might have on future cases, so watch this space and other firm publications for later developments. [Full disclosure: The prevailing parties in the Point Nursery case were represented by the Pacific Legal Foundation to which I have consulted about the presentation to the Supreme Court of property rights cases, though not this one.]

By my count, there are eight pending cases. Some, or all, likely will be released this Friday and next Monday.

By attorney Stuart Gerson of Epstein Becker Green, former Acting Attorney General of the United States and Assistant Attorney General for the Civil Division of the Department of Justice: https://www.ebglaw.com/stuart-m-gerson/

This article has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company.