SCOTUS: Part 2 of Three (Constitutional Concerns)

SCOTUSBlog provides these thumbnail summaries of the four Supreme Court cases handed down today (SCOTUS itself has enhanced links to the decision -- if you wave the cursor over the opinion, you get a thumbnail summary):

In Mahanoy Area School District v. B.L., the justices held 8-1 that the school district’s decision to suspend student Brandi Levy from the cheerleading team for posting vulgar language and gestures critical of the school to social media (outside of school hours and away from campus) violates the First Amendment.

In Cedar Point Nursery v. Hassid, the justices held 6-3 that a California regulation granting labor organizations a “right to take access” to an agricultural employer’s property to solicit support for unionization constitutes a per se physical taking.

In Lange v. California, the justices held that, under the Fourth Amendment, pursuit of a fleeing misdemeanor suspect does not always or categorically qualify as an exigent circumstance justifying a warrantless entry into a home.

In Collins v. Yellen, the justices held 7-2 that the Housing and Economic Recovery Act of 2008’s structure, which restricts the president’s power to remove the Federal Housing Finance Agency Director, violates the separation of powers.

There are various splits if more limited full dissents (liberals dissent in Hassid, Thomas dissents in the Case of the Cursing Cheerleader, no one dissents (though three don't go along on certain things) in the 4A case; the Yellen case has a more fractured nature with Sotomayor (with Breyer) with the strongest dissent energy ... and even there finds something to join too.

Fuck that: During the oral argument, Breyer really hoped that the cheerleader case would not try to change the law much. He got the opinion and wrote around eleven pages to not do much. Off campus speech is less likely to be something schools should address, but that isn't some complete statement; here, however, the school's interest was not strong enough. Alito (with Gorsuch) had a longer concurrence that was basically temperate. Thomas' dissent was not surprising (not a big fan of students' rights) but was even shorter than Breyer's opinion.

I'm supportive of the general principle of the majority opinion on both ends -- don't do much here and off campus speech is generally less something public schools should address. But, it was too dismissive (about a paragraph) in saying her little rant had no real effect on team morale. And, that is all the school addressed here -- she wasn't expelled. The school was concerned about the specific effect of her actions on the team. If she was suspended from the team for a few weeks, e.g., I don't think the Supreme Court should intervened. But, in principle, why not given the opinion? It wasn't as simple as all that.

Fourth Amendment: A minor noise related crime allegation served as an opening for the police to get into someone's home and find evidence of a much more serious offense. Kagan for six said that merely addressing a "fleeing suspect" type concern was not enough to do that in the case of a minor crime. As a blanket rule. She spent some time to defend this. Thomas concurred separately. Roberts (with Alito) spent some time saying it should be, but again concurs. So, the difference is unclear.

Takings Stupidity: Each opinion today has a constitutional component as compared to statutory interpretation. Roberts took a takings case involving a state requirement that union organizers get access. The liberals dissented. Kavanaugh concurred but noted they could have went with his desired more limited approach. If the union lost, yes, that is how it should have went down. He still went fully along with Roberts.

The government requires a range of things that involves regulations that bring forth unwanted visitors to employer's work places and property. This should have been seen as a suitable example. Roberts went another way with a strong Takings Clause rule. And, he added (with no actual discussion) that health regulations or such were different since that either was for the public welfare or was a trade-off employers had to accept. Bullshit. Unions are in place for public labor peace, including for the employer.

Separation of Powers: The Roberts Court had various opinions regarding the proper rules for appointment, removal, and reach of power of people in the administrative state. We just had one involving patent judges. The last case dealt with this general area, with over eighty pages of opinions, and again had a dubious result.

Kagan went along this time more than the other two liberals for the sake of stare decisis but thought it went too far. Sotomayor joined part of it but was more open to saying the constitutional result was wrong. Biden said "okay ... I'm going to use it to replace the guy!" I still am generally with Sotomayor that this whole conservative enterprise is dubious.

The case is also about a more limited issue which Alito for the Court felt was too limited to leave it at that. There are now eight opinions left, so let's just say Friday won't be the last opinion day. 

ETA: I noted in the last part that SCOTUS edited one opinion and apparently it was part of an editing check -- others were edited too, including Sotomayor's statement on not taking the draft case.  Again, one of the additions in recent terms is the Court flags edits of their opinions, which tend to be typo sort of things, but not quite cool that they used to not actually show when they changed something.  They also have online links to add on that page.