Rory Little on Lange v. CA, Cedar Point Nursery v. Hassid, and Collins v. Yellen

End-of-Term decisions show that “Cautious Conservatives” are now in charge at the Supreme Court (for now)


Photo of Rory Little           It’s often hard to keep up with the crush of decisions the Supreme Court usually issues in the last two weeks of its annual Term (which by tradition runs from October through June).  Today the Supreme Court issued four decisions, each important and worthy of individual note.  In addition to Mahanoy (the “cheerleader school speech” case covered in a separate post by my colleague Matt Coles), the Court issued important rulings regarding (1) criminal law and the Fourth Amendment; (2) labor law and property “takings;” and (3) home mortgage financing companies and the constitutional structure of federal agencies.  This post briefly summarizes the core of these three decisions (a total of 168 pages in the U.S. Reports).  The Justices were divided in all four cases, and law scholars would endlessly debate which is the “most important.”  Still, nuanced cautious analysis, rather than extreme categorical rulings, was the message of the day; and conservative Justices are plainly in control.


Lange v. California

            This decision came, quite unusually, directly from an unpublished decision of the California Court of Appeals in Sonoma County (the First District).  But it resolved a longstanding “split” among many lower courts as well as prior Supreme Court opinions.  The Court was unanimous in result, but splintered among four opinions on the details.  Still, a clear 5-4 majority ruled that there is no categorical exception to the Fourth Amendment for officers pursuing a fleeing misdemeanant into a home without a warrant.  Instead, such cases (which are likely a very small number in reality) must be examined individually under “all the circumstances” to see if a true, case-specific “exigency” exists.  If not, a warrant is required.

Arthur Lange failed to stop when signaled by a CHP officer to pull over, and instead turned into his home driveway and drove into his attached garage.  Failure to comply with a police signal is a misdemeanor in California; the CHP officer followed Lange into his garage (no warrant) and obtained evidence to charge Lange with driving under the influence of alcohol.  The trial court denied a motion to suppress that evidence and the California Court of Appeal affirmed, ruling that an officer’s “hot pursuit” of a misdemeanor offender into the misdemeanant’s home is always permitted without a warrant.

Today’s decision reversed that judgment (unanimously), and at least five Justices agreed that no categorical “misdemeanor hot pursuit” exception to the Fourth Amendment exists (even if an exception for hot pursuit of felony offenders does).  As Justice Kagan wrote in her 16-page majority decision, “An officer must [instead] consider all the circumstances … to determine whether there is a law enforcement emergency. On many occasions, the officer will have good reason to enter – to prevent imminent harms of violence, destruction of evidence, or escape.”  But otherwise, “when the officer has time to get a warrant, he must do so.”

Four Justices, however, disagreed on the details of the reversal here.  Justice Thomas concurred to say that some common-law “categorical exceptions” are supported by history – and that in any case, the remedy of excluding evidence from a criminal prosecution should never be applied.  Chief Justice Roberts, joined by Justice Alito, wrote 19 pages to say that “hot pursuit .. is itself an exigent circumstance” that should “almost always” allow a warrantless entry.  “Police in the field deserve to know” general rules, and Roberts says the majority opinion fails to provide much useful, generalizable, guidance.  Finally, Justice Kavanaugh apparently wants to be the peacemaker: he tried to agree with at least parts of all three opinions, joining Justice Kagan’s majority, and also Justice Thomas’s concurrence about the exclusionary rule, while also saying that “there is almost no daylight in practice between” Kagan’s and Robert’s opinions.

To some, it may be most significant that President Trump’s most recent appointment, Justice Barrett, silently joined Kagan’s majority opinion.  Perhaps that reflects Barrett’s relative inexperience, as a Justice, or as a criminal law practitioner – or a number of other possible explanations.  But I think it as likely signals a desire on Justice Barrett’s part to be cautious and not too quickly join more extreme views suggested by some.


Cedar Point Nursery v. Hassid

Another California case.  Cedar Point involved an attack on a California statute and regulation that grants labor organizations a “right to take access” to an agricultural employer’s property in order to reach laborers working there.  Such access is required for up to three hours a day (before work, at lunch, and after work), and 120 days (four 30-day months) a year.  Here, union organizers entered a strawberry grower’s farm in rural Siskiyou County one morning at 5am, without notice and using bullhorns to spread word of their efforts.  The District Court and the Ninth Circuit (with eight Judges dissenting, including six Trump appointees) ruled that the California rule was not a “per se taking” of the grower’s property that would necessarily require constitutional “just compensation.”

Chief Justice Robert’s 20-page opinion reversing this judgment reflected the most predictable ideological split of the day.  Roberts was joined by the five “conservative” Justices, while the three perceived “liberals” dissented in an opinion by Justice Breyer.  “Government action that physically appropriates property” is a clear “physical taking” that requires compensation, wrote the majority.  There are no “temporary” or “limited time” or “important public benefit” exceptions to this rule (other than individual discrete instances supported by the common law, such as law enforcement executing a search on private property).

The Court distinguished “physical appropriations” from “regulatory” requirements that condition permits or licenses on allowing government inspections for health or safety reasons; and also from regulations that restrict a property owner’s own use of their property.  In addition (in an exception showing the complexity of the allegedly “clear” rule), private property that is “generally open to the public” is “readily distinguishable” from private property that is “closed to the public” – thus the Court preserves its 1980 ruling that California can require “leafletting” on private shopping malls (PruneYard).  These all may be subject to a “multi-factor balancing test” under a precedent called Penn Central.  But when there is a “physical invasion” requiring property owners to allow others to enter, “Penn Central has no place.”  IT is a per se rule: such “takings require just compensation.”  Variations in “state easement law” do not matter; the “duration” or “size” of such a taking “bears only on the amount of compensation;” and fears that many governmental regulatory actions accepted today are endangered are described as “unfounded.”

Justice Breyer’s dissent, which Chief Justice Robert’s went out of his way to describe as “thoughtful” and treat “with respect,” simply states a “markedly different” view.  A temporary and limited regulation of a property owner’s “right to exclude others” is not automatically an unconstitutional “taking,” says Breyer.  Instead a balancing test, that should include consideration of important public purposes served by a regulation, should be used.  The PruneYard shopping mall precedent, says Breyer, “fits this case almost perfectly.”

Undoubtedly some will view the majority’s opinion here as “anti-labor,” and in that sense quite conservative.  But there is little overt expression of an “anti-labor” view in the majority, other than a subtle sentence saying that this regulation is “not germane to any [public] benefit” on the opinion’s final page.  It is unfortunate, to say the least, that the majority seems by that sentence to be trying to block any pro-labor determination when the case is remanded.  Nevertheless, the Chief Justice’s opinion is less extreme, and more complete with narrowing exceptions in general, than some of the other Justices’ more extreme views might have expressed.


Collins v. Yellen

            This is the most arcane – yet arguably most dramatic – ruling of today.   Justice Alito, now undeniably one of the two most conservative Justices on the Court, writes a 36-page opinion for a bare five-Justice majority.  But his analysis is unsatisfying as five Justices spread more extreme views, in all directions, over four additional opinions, and Alito’s opinion is itself only a plurality on some points.  The line-up, therefore, may be less important than the result.

The Court here rules that a “good cause” limitation on the President’s power to fire the Director of an important federal agency, is unconstitutional.  This is an extension of recent constitutional rulings paying great homage to the powers of the President, and not entirely consistent with earlier 20th-century precedents allowing Congress to protect the heads of independent federal agencies that it creates.  Moreover, there is no constitutional text that expressly regulates the powers of the President or Congress when it comes to “removal” of executive-branch officials.  So this ruling will further bedevil law students, and complicate the legislative creation of administrative agencies that have become central to our complex 21st-century world, far beyond the anticipation of “Framers” living almost two and a half centuries ago.

Briefly: in 2008 Congress created the Federal Housing Finance Agency (FHFA), to regulate mortgage lenders and address issues arising out of the 2008 housing-economic collapse.  Congress set it up so that a single person, exercising significant economic powers, is appointed (nominated by the President and confirmed by the Senate) to serve as Director of the FHFA.  To protect the Director from political pressure, Congress said they can be fired (“removed”) only for reasons constituting “good cause.”  However, the Court ruled last Term (5-4 in Seila Law, sadly one of Justice Ginsburg’s last cases) that a single Director with great power cannot be so protected from Presidential removal, lest the constitution’s “separation of powers” be endangered.  Today’s ruling in Collins simply finds that Seila Law controls regarding the FHFA, and is thus the FHFA contains a similarly unconstitutional agency structure.  However, the Court also finds that the “good cause” restriction is “severable” from the rest of the 2008 legislation, so the substantive aspects of the FHFA survives.  Meanwhile, a specific action for damages underlying this case is remanded (not unanimously) for further consideration.

The complicated and arcane history of how we got from 1787 to here, when there is no constitutional text that expressly addresses the creation of administrative agencies, let alone the Presidential “removal” of their heads, cannot be summarized in this already-overlong blog post.  The majority’s view embodies what the Federalist Society would describe as the ”Unitary Executive” theory – that all powers regarding the Executive Branch reside in the President, and that legislative limitations, on the President’s power to remove executive branch officials for any reason they like, violate implicit structural rules in the Constitution.  The opposed view, perhaps best represented today by Justice Sotomayor’s dissent (joined by Justice Breyer), is that “[t]he Court has proved far too eager in recent years to insert itself into questions of agency structure best left to Congress.”  (Justice Kagan does not disagree, but she (perhaps anticipating the battle for Roe v. Wade that will come next Term) says that Seila Law and stare decisis require her to concur “only in the judgment,” rather than dissent).

In the larger context of our world today, it seems to me that Collins is a relatively obscure, and certainly garbled, decision (5 separate opinions, each reflecting shifting alliances, majorities, and pluralities on the details).  Yet in terms of ideology, it is perhaps the strongest indication to date that the views of the Federalist Society on structural constitutional points have taken firm hold in the Court today.