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EDIT: nm, just reading the Wikipedia article on this instead of asking you all to do it for me
rjmccall fucked around with this message at 23:45 on Jun 21, 2021 |
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Jun 21, 2021 23:40
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 Opinions! 3 of 3 for June 21. loving Arthrex.UNITED STATES v. ARTHREX, INC. ET AL. TLDR: An Administrative Patent Judge is a “principal officer” which means that the President has to nominate and the Senate has to confirm them. ...or, alternately, and to fix the problem as quickly as possible, the Director of the United States Patent and Trademark Office (nominated and confirmed) has to be allowed to review decisions of APJs and reverse them if desired. Holding / Majority Opinion (Roberts) The validity of a patent previously issued by the Patent and Trademark Office can be challenged before the Patent Trial and Appeal Board, an executive tribunal within the PTO. The Board, composed largely of Administrative Patent Judges appointed by the Secretary of Commerce, has the final word within the Executive Branch on the validity of a challenged patent. Billions of dollars can turn on a Board decision. Under the Constitution, “[t]he executive Power” is vested in the President, who has the responsibility to “take Care that the Laws be faithfully executed.” The Appointments Clause provides that he may be assisted in carrying out that responsibility by officers nominated by him and confirmed by the Senate, as well as by other officers not appointed in that manner but whose work, we have held, must be directed and supervised by an officer who has been. The question presented is whether the authority of the Board to issue decisions on behalf of the Executive Branch is consistent with these constitutional provisions. … This suit centers on the Patent Trial and Appeal Board (PTAB), an executive adjudicatory body within the PTO established by the Leahy-Smith America Invents Act of 2011. The PTAB sits in panels of at least three members drawn from the Director, the Deputy Director, the Commissioner for Patents, the Commissioner for Trademarks, and more than 200 Administrative Patent Judges (APJs). The Secretary of Commerce appoints the members of the PTAB (except for the Director), including the APJs at issue in this dispute. Like the 1790 Patent Board, the modern Board decides whether an invention satisfies the standards for patentability on review of decisions by primary examiners. Through a variety of procedures, the PTAB can also take a second look at patents previously issued by the PTO. ... The PTAB is the last stop for review within the Executive Branch. A party dissatisfied with the final decision may seek judicial review in the Court of Appeals for the Federal Circuit. At this stage, the Director can intervene before the court to defend or disavow the Board’s decision. … Arthrex soon claimed that Smith & Nephew, Inc. and ArthroCare Corp. (collectively, Smith & Nephew) had infringed the ’907 patent, and the dispute eventually made its way to inter partes review in the PTO. Three APJs formed the PTAB panel that conducted the proceeding and ultimately concluded that a prior patent application “anticipated” the invention claimed by the ’907 patent, so that Arthrex’s patent was invalid. On appeal to the Federal Circuit, Arthrex raised for the first time an argument premised on the Appointments Clause of the Constitution. That Clause specifies how the President may appoint officers who assist him in carrying out his responsibilities. Principal officers must be appointed by the President with the advice and consent of the Senate, while inferior officers may be appointed by the President alone, the head of an executive department, or a court. Arthrex argued that the APJs were principal officers and therefore that their appointment by the Secretary of Commerce was unconstitutional. … The Federal Circuit agreed with Arthrex that APJs were principal officers. Neither the Secretary nor Director had the authority to review their decisions or to remove them at will. The Federal Circuit held that these restrictions meant that APJs were themselves principal officers, not inferior officers under the direction of the Secretary or Director. To fix this constitutional violation, the Federal Circuit invalidated the tenure protections for APJs. Making APJs removable at will by the Secretary, the panel held, prospectively “renders them inferior rather than principal officers.” The Federal Circuit vacated the PTAB’s decision and remanded for a fresh hearing before a new panel of APJs, who would no longer enjoy protection against removal. This satisfied no one. … The President is “‘responsible for the actions of the Executive Branch’” and “‘cannot delegate [that] ultimate responsibility or the active obligation to supervise that goes with it.’” The Framers recognized, of course, that “no single person could fulfill that responsibility alone, [and] expected that the President would rely on subordinate officers for assistance.” … The Appointments Clause provides: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Assigning the nomination power to the President guarantees accountability for the appointees’ actions because the “blame of a bad nomination would fall upon the president singly and absolutely.” … Only the President, with the advice and consent of the Senate, can appoint noninferior officers, called “principal” officers as shorthand in our cases. The “default manner of appointment” for inferior officers is also nomination by the President and confirmation by the Senate.. But the Framers foresaw that “when offices became numerous, and sudden removals necessary, this mode might be inconvenient.” Reflecting this concern for “administrative convenience,” the Appointments Clause permits Congress to dispense with joint appointment, but only for inferior officers. … Congress provided that APJs would be appointed as inferior officers, by the Secretary of Commerce as head of a department. The question presented is whether the nature of their responsibilities is consistent with their method of appointment. As an initial matter, no party disputes that APJs are officers—not “lesser functionaries” such as employees or contractors—because they “exercis[e] significant authority pursuant to the laws of the United States.” … The starting point for each party’s analysis is our opinion in Edmond. There we explained that “[w]hether one is an ‘inferior’ officer depends on whether he has a superior” other than the An inferior officer must be “directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” In Edmond, we applied this test to adjudicative officials within the Executive Branch—specifically, Coast Guard Court of Criminal Appeals judges appointed by the Secretary of Transportation. We held that the judges were inferior officers because they were effectively supervised by a combination of Presidentially nominated and Senate confirmed officers in the Executive Branch: first, the Judge Advocate General, who “exercise[d] administrative oversight over the Court of Criminal Appeals” by prescribing rules of procedure and formulating policies for court-martial cases, and could also “remove a Court of Criminal Appeals judge from his judicial assignment without cause”; and second, the Court of Appeals for the Armed Forces, an executive tribunal that could review the judges’ decisions under a de novo standard for legal issues and a deferential standard for factual issues. “What is significant,” we concluded, “is that the judges of the Court of Criminal Appeals have no power to render a final decision on behalf of the United States unless permitted to do so by other Executive officers.” Congress structured the PTAB differently, providing only half of the “divided” supervision to which judges of the Court of Criminal Appeals were subject. Like the Judge Advocate General, the PTO Director possesses powers of “administrative oversight.” The Director fixes the rate of pay for APJs, controls the decision whether to institute inter partes review, and selects the APJs to reconsider the validity of the patent. The Director also promulgates regulations governing inter partes review, issues prospective guidance on patentability issues, and designates past PTAB decisions as “precedential” for future panels. He is the boss, except when it comes to the one thing that makes the APJs officers exercising “significant authority” in the first place—their power to issue decisions on patentability. In contrast to the scheme approved by Edmond, no principal officer at any level within the Executive Branch “direct[s] and supervise[s]” the work of APJs in that regard. Edmond goes a long way toward resolving this dispute. What was “significant” to the outcome there—review by a superior executive officer—is absent here: APJs have the “power to render a final decision on behalf of the United States” without any such review by their nominal superior or any other principal officer in the Executive Branch.. The only possibility of review is a petition for rehearing, but Congress unambiguously specified that “[o]nly the Patent and Trial Appeal Board may grant rehearings.” Such review simply repeats the arrangement challenged as unconstitutional in this suit. … Given the insulation of PTAB decisions from any executive review, the President can neither oversee the PTAB himself nor “attribute the Board’s failings to those whom he can oversee.” APJs accordingly exercise power that conflicts with the design of the Appointments Clause “to preserve political accountability.” The principal dissent dutifully undertakes to apply the governing test from Edmond, but its heart is plainly not in it. For example, the dissent rejects any distinction between “inferior-officer power” and “principal-officer power,” but Edmond calls for exactly that: an appraisal of how much power an officer exercises free from control by a superior. ... We hold that the unreviewable authority wielded by APJs during inter partes review is incompatible with their appointment by the Secretary to an inferior office. … [Gorsuch doesn’t join this part about the remedy, but Breyer, Sotomayor, and Kagan do] We turn now to the appropriate way to resolve this dispute given this violation of the Appointments Clause. In general, “when confronting a constitutional flaw in a statute, we try to limit the solution to the problem” by disregarding the “problematic portions while leaving the remainder intact.” … Arthrex asks us to hold the entire regime of inter partes review unconstitutional. In its view, any more tailored declaration of unconstitutionality would necessitate a policy decision best left to Congress in the first instance. Because the good cannot be separated from the bad, Arthrex continues, the appropriate remedy is to order outright dismissal of the proceeding below. … In our view, however, the structure of the PTO and the governing constitutional principles chart a clear course: Decisions by APJs must be subject to review by the Director. Congress vested the Director with the “powers and duties” of the PTO, tasked him with supervising APJs, and placed the PTAB “in” the PTO. A single officer has superintended the activities of the PTO since the Commissioner of Patents assumed the role of “chief officer” of the Patent Office in 1836. The Commissioner long oversaw examiners-in-chief, just as the Director today has the responsibility to oversee APJs. While shielding the ultimate decisions of the 200-plus APJs from review, Congress also provided the Director means of control over the institution and conduct of inter partes review. In every respect save the insulation of their decisions from review within the Executive Branch, APJs appear to be inferior officers—an understanding consistent with their appointment in a manner permissible for inferior but not principal officers. The America Invents Act insulates APJs from supervision through two mechanisms. The statute provides that “each . . . inter partes review shall be heard by at least 3 members of the [PTAB]” and that “only the [PTAB] may grant rehearings.” The upshot is that the Director cannot rehear and reverse a final decision issued by APJs. If the Director were to have the “authority to take control” of a PTAB proceeding, APJs would properly function as inferior officers. We conclude that a tailored approach is the appropriate one: Section 6(c) cannot constitutionally be enforced to the extent that its requirements prevent the Director from reviewing final decisions rendered by APJs. Because Congress has vested the Director with the “power and duties” of the PTO, the Director has the authority to provide for a means of reviewing PTAB decisions. The Director accordingly may review final PTAB decisions and, upon review, may issue decisions himself on behalf of the Board. Section 6(c) otherwise remains operative as to the other members of the PTAB. … Today, we reaffirm and apply the rule from Edmond that the exercise of executive power by inferior officers must at some level be subject to the direction and supervision of an officer nominated by the President and confirmed by the Senate. The Constitution therefore forbids the enforcement of statutory restrictions on the Director that insulate the decisions of APJs from his direction and supervision. To be clear, the Director need not review every decision of the PTAB. What matters is that the Director have the discretion to review decisions rendered by APJs. In this way, the President remains responsible for the exercise of executive power—and through him, the exercise of executive power remains accountable to the people. The judgment of the United States Court of Appeals for the Federal Circuit is vacated, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Roberts, joined by Alito, Gorsuch, Kavanaugh, and Barrett with respect to Parts I and II, and joined by Alito, Kavanaugh, and Barrett as to Part III (Breyer, Sotomayor, and Kagan also join in the judgment here). Concurrence in part and dissent in part by Gorsuch. Concurrence in the judgment part and dissent in part by Breyer, joined by Sotomayor and Kagan. Dissent by Thomas, joined by Breyer, Sotomayor, and Kagan. Concurrence in part and dissent in part: (Gorsuch): For most of this Nation’s history, an issued patent was considered a vested property right that could be taken from an individual only through a lawful process before a court. I continue to think this Court’s recent decision in Oil States—upsetting this traditional understanding and allowing officials in the Executive Branch to “cancel” already-issued patents—departed from the Constitution’s separation of powers. But it would be an even greater departure to permit those officials to withdraw a vested property right while accountable to no one within the Executive Branch. Accordingly, I join Parts I and II of the Court’s opinion. Respectfully, however, I am unable join the Court’s severability discussion in Part III [note, typo in the original]. … In Part III of its opinion, the Court invokes severability doctrine. It “sever[s]” Congress’s statutory direction that PTAB decisions may not be reviewed by the Director of the Patent Office—in that way reconnecting APJs to the chain of command and subjecting their decisions to a superior who is, in turn, ultimately accountable to the President. I don’t question that we might proceed this way in some cases. Faced with an application of a statute that violates the Constitution, a court might look to the text of the law in question to determine what Congress has said should happen in that event. Sometimes Congress includes “fallback” provisions of just this sort, and sometimes those provisions tell us to disregard this or that provision if its statutory scheme is later found to offend the Constitution. The problem here is that Congress has said nothing of the sort. And here it is the combination of separate statutory provisions that conspire to create a constitutional violation. Through some provisions, Congress has authorized executive officers to cancel patents. Through others, it has made their exercise of that power unreviewable within the Executive Branch. It’s the combination of these provisions—the exercise of executive power and unreviewability—that violates the Constitution’s separation of powers. Nor is there only one possible way out of the problem….Without some direction from Congress, this problem cannot be resolved as a matter of statutory interpretation. All that remains is a policy choice. … While the Court has in relatively recent years proclaimed the power to proceed in this fashion, it has never paused to explain how this “severance doctrine” comports with traditional judicial remedial principles. Or with the fact that the judicial power is limited to resolving discrete cases and controversies. … Nor does the Court pause to consider whether venturing further down this remedial path today risks undermining the very separation of powers its merits decision purports to vindicate. While the Court’s merits analysis ensures that executive power properly resides in the Executive Branch, its severability analysis seemingly confers legislative power to the Judiciary—endowing us with the authority to make a raw policy choice between competing lawful options. No doubt, if Congress is dissatisfied with the choice the Court makes on its behalf today, it can always reenter the field and revise our judgment. But doesn’t that just underscore the legislative nature of the Court’s judgment? And doesn’t deciding for ourselves which policy course to pursue today allow Congress to disclaim responsibility for our legislative handiwork much as the President might the PTAB’s executive decisions under the current statutory structure? … Even if our judgment demands some degree of democratic accountability in the IPR process, it does not begin to fix the revolving door or any of the other due process problems Oil States ignored. No doubt, challenges involving those aspects of the IPR process will come. When they do, I hope this Court will come to recognize what was evident for so much of our history—that the process due someone with a vested property right in a patent is a proceeding before a neutral and independent judge. Concurrence in the judgment in part and dissent in part: (Breyer, joined by Sotomayor and Kagan): I agree with JUSTICE THOMAS’ discussion on the merits and I join Parts I and II of his dissent. Two related considerations also persuade me that his conclusion is correct. First, in my view, the Court should interpret the Appointments Clause as granting Congress a degree of leeway to establish and empower federal offices. Neither that Clause nor anything else in the Constitution describes the degree of control that a superior officer must exercise over the decisions of an inferior officer. … Even a small degree of “judicial deference” should prove sufficient to validate the statutes here. For one, the provisions at issue fall well within Article I’s grant to Congress of the patent power. Nothing in them represents an effort by the “Legislative Branch [to] aggrandize itself at the expense of the other two branches.”There is accordingly no general separation-of-powers defect that has arisen in other cases. For another, Congress’ scheme is consistent with our Appointments Clause precedents. They require only that an inferior officer be “directed and supervised at some level,” and the Administrative Patent Judges (APJs) are supervised by two separate Senate-confirmed officers, the Secretary of Commerce and the Director of the Patent and Trademark Office. Finally, Congress’ judgment is unusually clear in this suit, as there is strong evidence that Congress designed the current structure specifically to address constitutional concerns. See In re DBC, 545 F. 3d 1373, 1377–1380 (CA Fed. 2008) (explaining amendment to address defects in prior appointment process). Second, I believe the Court, when deciding cases such as these, should conduct a functional examination of the offices and duties in question rather than a formalist, judicial-rules-based approach. In advocating for a “functional approach,” I mean an approach that would take account of, and place weight on, why Congress enacted a particular statutory limitation. It would also consider the practical consequences that are likely to follow from Congress’ chosen scheme. .. In this suit, a functional approach, which considers purposes and consequences, undermines the Court’s result. Most agencies (and courts for that matter) have the power to reconsider an earlier decision, changing the initial result if appropriate. Congress believed that the PTO should have that same power and accordingly created procedures for reconsidering issued patents. Congress also believed it important to strengthen the reconsideration power with procedural safeguards that would often help those whom the PTO’s initial decision had favored, such as the requirement that review be available only when there is a “reasonable likelihood” that the patent will be invalid. Given the technical nature of patents, the need for expertise, and the importance of avoiding political interference, Congress chose to grant the APJs a degree of independence. These considerations set forth a reasonable legislative objective sufficient to justify the restriction upon the Director’s authority that Congress imposed. And, as JUSTICE THOMAS thoroughly explains, there is no reason to believe this scheme will prevent the Director from exercising policy control over the APJs or will break the chain of accountability that is needed to hold the President responsible for bad nominations. … This is not to say that the Constitution grants Congress free rein. But in this area of the law a functional approach, when compared with the highly detailed judicial-rules-based approach reflected in the Court’s decision, is more likely to prevent inappropriate judicial interference. It embodies, at least to a degree, the philosopher’s advice: “Whereof one cannot speak, thereof one must be silent.” For the reasons I have set forth above, I do not agree with the Court’s basic constitutional determination. For purposes of determining a remedy, however, I recognize that a majority of the Court has reached a contrary conclusion. On this score, I believe that any remedy should be tailored to the constitutional violation. Under the Court’s new test, the current statutory scheme is defective only because the APJ’s decisions are not reviewable by the Director alone. The Court’s remedy addresses that specific problem, and for that reason I agree with its remedial holding. In my view, today’s decision is both unprecedented and unnecessary, and risks pushing the Judiciary further into areas where we lack both the authority to act and the capacity to act wisely. I respectfully dissent. Dissent: (Thomas, joined by Breyer, Sotomayor, and Kagan): For the very first time, this Court holds that Congress violated the Constitution by vesting the appointment of a federal officer in the head of a department. Just who are these “principal” officers that Congress unsuccessfully sought to smuggle into the Executive Branch without Senate confirmation? About 250 administrative patent judges who sit at the bottom of an organizational chart, nestled under at least two levels of authority. Neither our precedent nor the original understanding of the Appointments Clause requires Senate confirmation of officers inferior to not one, but two officers below the President. The Executive Branch is large, and the hierarchical path from President to administrative patent judge is long. At the top sits the President, in whom the executive power is vested. Below him is the Secretary of Commerce, who oversees the Department of Commerce and its work force of about 46,000. Within that Department is the United States Patent and Trademark Office led by a Director. In the Patent and Trademark Office is the Patent Trial and Appeal Board. §6(a). Serving on this Board are administrative patent judges. There are few statutory prerequisites to becoming an administrative patent judge. One must be a “perso[n] of competent legal knowledge and scientific ability” and be “appointed by the Secretary.. The job description too is relatively straightforward: sit on the Board along with the Director, the Deputy Director, the Commissioner for Patents, the Commissioner for Trademarks, and other administrative patent judges. … The Court now partially agrees with the Federal Circuit. Although it cannot quite bring itself to say so expressly, it too appears to hold that administrative patent judges are principal officers under the current statutory scheme. But it concludes that the better way to judicially convert these principal officers to inferior ones is to allow the Director to review Board decisions unilaterally. That both the Federal Circuit and this Court would take so much care to ensure that administrative patent judges, appointed as inferior officers, would remain inferior officers at the end of the day suggests that perhaps they were inferior officers to begin with. Instead of rewriting the Director’s statutory powers, I would simply leave intact the patent scheme Congress has created. The Constitution creates a default process to appoint all officers: The President “by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” But Congress has discretion to change the default process for “inferior” officers: “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” The Court has been careful not to create a rigid test to divide principal officers—those who must be Senate confirmed—from inferior ones. Instead, the Court’s opinions have traditionally used a case-by-case analysis. And those analyses invariably result in this Court deferring to Congress’ choice of which constitutional appointment process works best. … There can be no dispute that administrative patent judges are, in fact, inferior: They are lower in rank to at least two different officers. As part of the Board, they serve in the Patent and Trademark Office, run by a Director “responsible for providing policy direction and management supervision for the Office and for the issuance of patents and the registration of trademarks.” That Office, in turn, is “[w]ithin the Department of Commerce” and “subject to the policy direction of the Secretary of Commerce.” The Secretary, in consultation with the Director, appoints administrative patent judges. As a comparison to the facts in Edmond illustrates, the Director and Secretary are also functionally superior because they supervise and direct the work administrative patent judges perform. In Edmond, the Court focused on the supervision exercised by two different entities: the Judge Advocate General and the Court of Appeals for the Armed Forces (CAAF). The Judge Advocate General exercised general administrative oversight over the court on which the military judges sat. He possessed the power to prescribe uniform rules of procedure for the court and to formulate policies and procedure with respect to the review of court-martial cases in general. And he could remove a Court of Criminal Appeals judge from his judicial assignment without cause, a “powerful tool for control.” The Court noted, however, that “[t]he Judge Advocate General’s control over Court of Criminal Appeals judges is . . . not complete.” This was so for two reasons. He could “not attempt to influence (by threat of removal or otherwise) the outcome of individual proceedings.” Ibid. And, he had “no power to reverse decisions of the court.” … To be sure, the Director’s power over administrative patent judges is not complete. He cannot singlehandedly reverse decisions. Still, he has two powerful checks on Board decisions not found in Edmond. Unlike the Judge Advocate General and CAAF in Edmond, the Director may influence individual proceedings. The Director decides in the first instance whether to institute, refuse to institute, or de-institute particular reviews, a decision that is “final and nonappealable.” f the Director institutes review, he then may select which administrative patent judges will hear the challenge. Alternatively, he can avoid assigning any administrative patent judge to a specific dispute and instead designate himself, his Deputy Director, and the Commissioner of Patents. In addition, the Director decides which of the thousands of decisions issued each year bind other panels as precedent. No statute bars the Director from taking an active role to ensure the Board’s decisions conform to his policy direction. But, that is not all. If the administrative patent judges “(somehow) reach a result he does not like, the Director can add more members to the panel—including himself—and order the case reheard.” … The Court today appears largely to agree with all of this. “In every respect” save one, the plurality says, “[administrative patent judges] appear to be inferior officers.” But instead of finding it persuasive that administrative patent judges seem to be inferior officers—“an understanding consistent with their appointment”—the majority suggests most of Edmond is superfluous: All that matters is whether the Director has the statutory authority to individually reverse Board decisions. The problem with that theory is that there is no precedential basis (or historical support) for boiling down “inferior-officer” status to the way Congress structured a particular agency’s process for reviewing decisions. If anything, Edmond stands for the proposition that a “limitation upon review does not . . . render [officers] principal officers.” … Perhaps the better way to understand the Court’s opinion today is as creating a new form of intrabranch separation of-powers law. Traditionally, the Court’s task when resolving Appointments Clause challenges has been to discern whether the challenged official qualifies as a specific sort of officer and whether his appointment complies with the Constitution. If the official’s appointment is inconsistent with the constitutional appointment process for the position he holds, then the Court provides a remedy. Otherwise, the Court must conclude that the “appointments at issue in th[e] case are . . . valid.” Today’s majority leaves that tried-and-true approach behind. It never expressly tells us whether administrative patent judges are inferior officers or principal. And the Court never tells us whether the appointment process complies with the Constitution. The closest the Court comes is to say that “the source of the constitutional violation” is not “the appointment of [administrative patent judges] by the Secretary.” Under our precedent and the Constitution’s text, that should resolve the suit. If the appointment process for administrative patent judges—appointment by the Secretary—does not violate the Constitution, then administrative patent judges must be inferior officers. … The majority’s new Appointments Clause doctrine, though, has nothing to do with the validity of an officer’s appointment. Instead, it polices the dispersion of executive power among officers. Echoing our doctrine that Congress may not mix duties and powers from different branches into one actor, the Court finds that the constitutional problem here is that Congress has given a specific power—the authority to finally adjudicate inter partes review disputes— to one type of executive officer that the Constitution gives to another. … our separation-of-powers analysis does not fit. The Constitution recognizes executive, legislative, and judicial power, and it vests those powers in specific branches. Nowhere does the Constitution acknowledge any such thing as “inferior-officer power” or “principal-officer power.” And it certainly does not distinguish between these sorts of powers in the Appointments Clause. And even if it did, early patent dispute schemes establish that the power exercised by the administrative patent judges here does not belong exclusively to principal officers. Nonprincipal officers could—and did—render final decisions in specific patent disputes, not subject to any appeal to a superior executive officer. … In the end, the Court’s remedy underscores that it is ambivalent about the idea of administrative patent judges actually being principal officers. Instead of holding as much explicitly, the Court rewrites the statutory text to ensure that the Director can directly review Board decisions. Specifically, the Court declares unenforceable the statutory provision that “prevents the Director from reviewing the decisions of the [Board] on his own.” And as a remedy, the Court “remand[s] to the Acting Director for him to decide whether to rehear the petition.” In that way, the Court makes extra clear what should already be obvious: Administrative patent judges are inferior officers. But neither reading of the majority’s opinion—(1) that administrative patent judges are principal officers that the Court has converted to inferior officers, or (2) that administrative patent judges are inferior officers whose decisions must constitutionally be reversible by the Director alone— supports its proposed remedy. Take the principal officer view. If the Court truly believed administrative patent judges are principal officers, then the Court would need to vacate the Board’s decision. As this Court has twice explained, “the ‘appropriate’ remedy for an adjudication tainted with an appointments violation is a new ‘hearing before a properly appointed’ official.” … The quasi-separation-of-powers view fares no better. If we accept as true the Court’s position that the Appointments Clause inherently grants the Director power to reverse Board decisions, then another problem arises: No constitutional violation has occurred in this suit. The Board had the power to decide and lawfully did decide the dispute before it. The Board did not misinterpret its statutory authority or try to prevent direct review by the Director. Nor did the Director wrongfully decline to rehear the Board’s decision. Moreover, Arthrex has not argued that it sought review by the Director. So to the extent “the source of the constitutional violation is the restraint on the review authority of the Director,” ibid., his review was not constrained. Without any constitutional violation in this suit to correct, one wonders how the Court has the power to issue a remedy. … The Court today draws a new line dividing inferior officers from principal ones. The fact that this line places administrative patent judges on the side of Ambassadors, Supreme Court Justices, and department heads suggests that something is not quite right. At some point, we should take stock of our precedent to see if it aligns with the Appointments Clause’s original meaning. But, for now, we must apply the test we have. And, under that test, administrative patent judges are both formally and functionally inferior to the Director and to the Secretary. I respectfully dissent. https://www.supremecourt.gov/opinions/20pdf/19-1434_ancf.pdf
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Jun 22, 2021 03:29
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ulmont posted:[lengthy post omitted] (USER WAS PUT ON PROBATION FOR THIS POST) Somebody fucked around with this message at 04:22 on Jun 22, 2021 |
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Jun 22, 2021 03:37
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And if you lookup "Patent Troll" in the dictionary, you will see Arthrex
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Jun 22, 2021 03:42
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Nissin Cup Nudist posted:And if you lookup "Patent Troll" in the dictionary, you will see Arthrex Nah, they’re an actual company. Litigious, but by no means a troll. (Also in this opinion Thomas continues his streak of being the best SCOTUS justice when it comes to patents.)
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Jun 22, 2021 06:04
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Kalman posted:Nah, they’re an actual company. Litigious, but by no means a troll. Wait, he actually has an issue he's good on, like Gorsuch has tribal rights or Kavanaugh has, uh, sports? 
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Jun 22, 2021 09:05
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I dont think being a patent troll requires you to not be an actual company, it just requires you to try and acquire patents with the primary goal of litigating them right?
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Jun 22, 2021 10:50
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Yeah, the accepted definition of patent troll is that your only source of income is patent lawsuits. They don't make anything, they don't sell anything, and they usually bought the patent in question off the company who did the R&D and then fell on hard times
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Jun 22, 2021 13:44
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Nissin Cup Nudist posted:And if you lookup "Patent Troll" in the dictionary, you will see Arthrex I actually meant the decision itself, not the company The decision seems like the most technical and pointless minutiae possible
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Jun 22, 2021 16:07
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Sir Tonk posted:man, alito sure is a piece of poo poo Probably the dumbest person to ever sit on the Court. His whiny dissent in Bostock was delicious. https://twitter.com/IChotiner/status/1407691559500337156?s=20 quote:You write about Breyer, “He is the one of the great pragmatist justices ever to have sat on the Supreme Court. . . . Breyer also knows Capitol Hill, having worked there three separate times,” and you add, “What Breyer needs and deserves is room to maneuver, to find the best and most rational way to satisfy the complex competing interests around his retirement.” This implies that the decision is complex and requires expertise. Do you think it is? Groovelord Neato fucked around with this message at 14:33 on Jun 23, 2021 |
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Jun 22, 2021 16:45
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The Cedar Point Nursery decision seems to be a doozy. quote:The access regulation grants labor organizations a right to invade the growers' property. It therefore constitutes a per se physical taking
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Jun 23, 2021 17:11
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the hell happened between today and bonghitz4jesus
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Jun 23, 2021 17:36
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Please look forward to the eventual ruling that unions and worker rights are unconstitutional because they infringe on the rights of Job Creators.
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Jun 23, 2021 17:42
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The most vocal weed haters on the court died off
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Jun 23, 2021 17:42
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i say swears online posted:the hell happened between today and bonghitz4jesus This case isn't about drugs
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Jun 23, 2021 17:42
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minimum wage? Definitely a taking Federal regulators being allowed to inspect your factory? obviously a taking label requirements on products? Dude, taking
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Jun 23, 2021 17:43
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My weekly law lmao comes from reading Thomas' lone dissent in the Brandi Levi case sure to be discussedquote:In a dissent, Justice Clarence Thomas wrote that the school was right to suspend Levy because students like her "who are active in extracurricular programs have a greater potential, by virtue of their participation, to harm those programs." Callow Youths critically damaging our hallowed institutions of learning and fitful sporting with their profanity-laced screeds, delivered to their chums at the local indoor walking-mall: as much, or more of a perfidy than denials of Christ at sock-hops and at the local soda fountain? Local septuagenarian offers his wizened input.
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Jun 23, 2021 17:46
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haveblue posted:This case isn't about drugs no way
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Jun 23, 2021 18:19
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Opinions! 1-2 of 4 for June 23. 8 opinions left after today, IIRC. CEDAR POINT NURSERY ET AL. v. HASSID ET AL. TLDR: The California regulation that grants labor organizations a “right to take access” to an agricultural employer’s property in order to solicit support for unionization for up to three hours per day, 120 days per year, is a “per se physical taking” that requires compensation under the 5th and 14th Amendments. Holding / Majority Opinion (Roberts) A California regulation grants labor organizations a “right to take access” to an agricultural employer’s property in order to solicit support for unionization. Agricultural employers must allow union organizers onto their property for up to three hours per day, 120 days per year. The question presented is whether the access regulation constitutes a per se physical taking under the Fifth and Fourteenth Amendments. … Under the regulation, a labor organization may “take access” to an agricultural employer’s property for up to four 30-day periods in one calendar year. In order to take access, a labor organization must file a written notice with the [California Agricultural Labor Relations Board] and serve a copy on the employer. Two organizers per work crew (plus one additional organizer for every 15 workers over 30 workers in a crew) may enter the employer’s property for up to one hour before work, one hour during the lunch break, and one hour after work. Organizers may not engage in disruptive conduct, but are otherwise free to meet and talk with employees as they wish. Interference with organizers’ right of access may constitute an unfair labor practice, which can result in sanctions against the employer. ... [Cedar Point Nursery et al.] filed suit in Federal District Court against several [United Farm Workers] Board members in their official capacity. The growers argued that the access regulation effected an unconstitutional per se physical taking under the Fifth and Fourteenth Amendments by appropriating without compensation an easement for union organizers to enter their property. They requested declaratory and injunctive relief prohibiting the Board from enforcing the regulation against them … The Takings Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, provides: “[N]or shall private property be taken for public use, without just compensation.” The Founders recognized that the protection of private property is indispensable to the promotion of individual freedom. As John Adams tersely put it, “[p]roperty must be secured, or liberty cannot exist.” This Court agrees, having noted that protection of property rights is “necessary to preserve freedom” and “empowers persons to shape and to plan their own destiny in a world where governments are always eager to do so for them.” When the government physically acquires private property for a public use, the Takings Clause imposes a clear and categorical obligation to provide the owner with just compensation. The Court’s physical takings jurisprudence is “as old as the Republic.” The government commits a physical taking when it uses its power of eminent domain to formally condemn property. The same is true when the government physically takes possession of property without acquiring title to it. And the government likewise effects a physical taking when it occupies property—say, by recurring flooding as a result of building a dam. These sorts of physical appropriations constitute the “clearest sort of taking,” and we assess them using a simple, per se rule: The government must pay for what it takes. When the government, rather than appropriating private property for itself or a third party, instead imposes regulations that restrict an owner’s ability to use his own property, a different standard applies....“while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”...To determine whether a use restriction effects a taking, this Court has generally applied the flexible test developed in Penn Central, balancing factors such as the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the government action. … Our cases have often described use restrictions that go “too far” as “regulatory takings.” But that label can mislead. Government action that physically appropriates property is no less a physical taking because it arises from a regulation. That explains why we held that an administrative reserve requirement compelling raisin growers to physically set aside a percentage of their crop for the government constituted a physical rather than a regulatory taking. The essential question is not, as the Ninth Circuit seemed to think, whether the government action at issue comes garbed as a regulation (or statute, or ordinance, or miscellaneous decree). It is whether the government has physically taken property for itself or someone else—by whatever means—or has instead restricted a property owner’s ability to use his own property. Whenever a regulation results in a physical appropriation of property, a per se taking has occurred, and Penn Central has no place. The access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking. The regulation grants union organizers a right to physically enter and occupy the growers’ land for three hours per day, 120 days per year. Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties the owners’ right to exclude. The right to exclude is “one of the most treasured” rights of property ownership. ... Given the central importance to property ownership of the right to exclude, it comes as little surprise that the Court has long treated government-authorized physical invasions as takings requiring just compensation. The Court has often described the property interest taken as a servitude or an easement. … In Loretto v. Teleprompter Manhattan CATV Corp., we made clear that a permanent physical occupation constitutes a per se taking regardless whether it results in only a trivial economic loss. New York adopted a law requiring landlords to allow cable companies to install equipment on their properties. Loretto alleged that the installation of a ˝-inch diameter cable and two 1˝-cubicfoot boxes on her roof caused a taking. We agreed, stating that where government action results in a “permanent physical occupation of property, our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner.” … The upshot of this line of precedent is that government-authorized invasions of property—whether by plane, boat, cable, or beachcomber—are physical takings requiring just compensation. As in those cases, the government here has appropriated a right of access to the growers’ property, allowing union organizers to traverse it at will for three hours a day, 120 days a year. The regulation appropriates a right to physically invade the growers’ property—to literally “take access,” as the regulation provides.It is therefore a per se physical taking under our precedents. Accordingly, the growers’ complaint states a claim for an uncompensated taking in violation of the Fifth and Fourteenth Amendments. The Ninth Circuit saw matters differently, as do the Board and the dissent. In the decision below, the Ninth Circuit took the view that the access regulation did not qualify as a per se taking because, although it grants a right to physically invade the growers’ property, it does not allow for permanent and continuous access “24 hours a day, 365 days a year.” The dissent likewise concludes that the regulation cannot amount to a per se taking because it allows “access short of 365 days a year.” That position is insupportable as a matter of precedent and common sense. There is no reason the law should analyze an abrogation of the right to exclude in one manner if it extends for 365 days, but in an entirely different manner if it lasts for 364. ... The Board, seconded by the dissent, warns that treating the access regulation as a per se physical taking will endanger a host of state and federal government activities involving entry onto private property. That fear is unfounded. First, our holding does nothing to efface the distinction between trespass and takings. Isolated physical invasions, not undertaken pursuant to a granted right of access, are properly assessed as individual torts rather than appropriations of a property right. This basic distinction is firmly grounded in our precedent. … Second, many government-authorized physical invasions will not amount to takings because they are consistent with longstanding background restrictions on property rights. As we explained in Lucas v. South Carolina Coastal Council, the government does not take a property interest when it merely asserts a “pre-existing limitation upon the land owner’s title.” … Third, the government may require property owners to cede a right of access as a condition of receiving certain benefits, without causing a taking...Under this framework, government health and safety inspection regimes will generally not constitute takings. … The access regulation grants labor organizations a right to invade the growers’ property. It therefore constitutes a per se physical taking. The judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Roberts, joined by Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Concurrence by Kavanaugh. Dissent by Breyer, joined by Sotomayor and Kagan. Concurrence: (Kavanaugh): I join the Court’s opinion, which carefully adheres to constitutional text, history, and precedent. I write separately to explain that, in my view, the Court’s precedent in NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956), also strongly supports today’s decision. In Babcock, the National Labor Relations Board argued that the National Labor Relations Act afforded union organizers a right to enter company property to communicate with employees. Several employers responded that the Board’s reading of the Act would infringe their Fifth Amendment property rights. The employers contended that Congress, “even if it could constitutionally do so, has at no time shown any intention of destroying property rights secured by the Fifth Amendment, in protecting employees’ rights of collective bargaining under the Act. Until Congress should evidence such intention by specific legislative language, our courts should not construe the Act on such dangerous constitutional grounds.” This Court agreed with the employers’ argument that the Act should be interpreted to avoid unconstitutionality. The Court reasoned that “the National Government” via the Constitution “preserves property rights,” including “the right to exclude from property.” Against the backdrop of the Constitution’s strong protection of property rights, the Court interpreted the Act to afford access to union organizers only when “needed,” —that is, when the employees live on company property and union organizers have no other reasonable means of communicating with the employees. As I read it, Babcock recognized that employers have a basic Fifth Amendment right to exclude from their private property, subject to a “necessity” exception similar to that noted by the Court today. … With those comments, I join the Court’s opinion in full. Dissent: (Breyer, joined by Sotomayor and Kagan): A California regulation provides that representatives of a labor organization may enter an agricultural employer’s property for purposes of union organizing. They may do so during four months of the year, one hour before the start of work, one hour during an employee lunch break, and one hour after work. The question before us is how to characterize this regulation for purposes of the Constitution’s Takings Clause. Does the regulation physically appropriate the employers’ property? If so, there is no need to look further; the Government must pay the employers “just compensation.” Or does the regulation simply regulate the employers’ property rights? If so, then there is every need to look further; the government need pay the employers “just compensation” only if the regulation “goes too far.” The Court holds that the provision’s “access to organizers” requirement amounts to a physical appropriation of property. In its view, virtually every government-authorized invasion is an “appropriation.” But this regulation does not “appropriate” anything; it regulates the employers’ right to exclude others. At the same time, our prior cases make clear that the regulation before us allows only a temporary invasion of a landowner’s property and that this kind of temporary invasion amounts to a taking only if it goes “too far.” … “In view of the nearly infinite variety of ways in which government actions or regulations can affect property interests, the Court has recognized few invariable rules in this area.” Instead, most government action affecting property rights is analyzed case by case under Penn Central’s fact-intensive test. Petitioners do not argue that the provision at issue is a “regulatory taking” under that test. Instead, the question before us is whether the access regulation falls within one of two narrow categories of government conduct that are per se takings. The first is when “‘the government directly appropriates private property for its own use.’” The second is when the government causes a permanent physical occupation of private property. … From the employers’ perspective, [the regulation] restricts when and where they can exclude others from their property. At the same time, the provision only awkwardly fits the terms “physical taking” and “physical appropriation.” The “access” that it grants union organizers does not amount to any traditional property interest in land. It does not, for example, take from the employers, or provide to the organizers, any freehold estate (e.g., a fee simple, fee tail, or life estate); any concurrent estate (e.g., a joint tenancy, tenancy in common, or tenancy by the entirety); or any leasehold estate (e.g., a term of years, periodic tenancy, or tenancy at will). Nor (as all now agree) does it provide the organizers with a formal easement or access resembling an easement, as the employers once argued, since it does not burden any particular parcel of property. The majority concludes that the regulation nonetheless amounts to a physical taking of property because, the majority says, it “appropriates” a “right to invade” or a “right to exclude” others. It thereby likens this case to cases in which we have held that appropriation of property rights amounts to a physical per se taking. It is important to understand, however, that, technically speaking, the majority is wrong. The regulation does not appropriate anything. It does not take from the owners a right to invade (whatever that might mean). It does not give the union organizations the right to exclude anyone. It does not give the government the right to exclude anyone. What does it do? It gives union organizers the right temporarily to invade a portion of the property owners’ land. It thereby limits the landowners’ right to exclude certain others. The regulation regulates (but does not appropriate) the owners’ right to exclude. Why is it important to understand this technical point? Because only then can we understand the issue before us. That issue is whether a regulation that temporarily limits an owner’s right to exclude others from property automatically amounts to a Fifth Amendment taking. Under our cases, it does not. Our cases draw a distinction between regulations that provide permanent rights of access and regulations that provide nonpermanent rights of access. They either state or hold that the first type of regulation is a taking per se, but the second kind is a taking only if it goes “too far.” And they make this distinction for good reason. Consider the Court’s reasoning in an important case in which the Court found a per se taking. In Loretto, the Court considered the status of a New York law that required landlords to permit cable television companies to install cable facilities on their property. We held that the installation amounted to a permanent physical occupation of the property and hence to a per se taking. … We also explained why permanent physical occupations are distinct from temporary limitations on the right to exclude. We said that, when the government permanently occupies property, it “does not simply take a single ‘strand’ from the ‘bundle’ of property rights: it chops through the bundle, taking a slice of every strand,” “effectively destroy[ing]” “the rights ‘to possess, use and dispose of it.’” Now consider PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980). We there considered the status of a state constitutional requirement that a privately owned shopping center permit other individuals to enter upon, and to use, the property to exercise their rights to free speech and petition. We held that this requirement was not a per se taking in part because (even though the individuals may have “‘physically invaded’” the owner’s property) “[t]here [wa]s nothing to suggest that preventing [the owner] from prohibiting this sort of activity w[ould] unreasonably impair the value or use of th[e] property as a shopping center,” and the owner could “adop[t] time, place, and manner regulations that w[ould] minimize any interference with its commercial functions.” … As these cases have used the terms, the regulation here at issue provides access that is “temporary,” not “permanent.” Unlike the regulation in Loretto, it does not place a “fixed structure on land or real property.” The employers are not “forever denie[d]” “any power to control the use” of any particular portion of their property.And it does not totally reduce the value of any section of the property.Unlike in Nollan, the public cannot walk over the land whenever it wishes; rather a subset of the public may enter a portion of the land three hours per day for four months per year (about 4% of the time). At bottom, the regulation here, unlike the regulations in Loretto and Nollan, is not “functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain.” … Our cases have recognized, as the majority says, that the right to exclude is a “‘fundamental element of the property right.’” For that reason, “[a] ‘taking’ may more readily be found when the interference with property can be characterized as a physical invasion by government.” But a taking is not inevitably found just because the interference with property can be characterized as a physical invasion by the government, or, in other words, when it affects the right to exclude. … Finally, I touch briefly on remedies, which the majority does not address. The Takings Clause prohibits the Government from taking private property for public use without “just compensation.” But the employers do not seek compensation. They seek only injunctive and declaratory relief. Indeed, they did not allege any damages. On remand, California should have the choice of foreclosing injunctive relief by providing compensation. I recognize that the Court’s prior cases in this area are not easy to apply. Moreover, words such as “temporary,” “permanent,” or “too far” do not define themselves. But I do not believe that the Court has made matters clearer or better. Rather than adopt a new broad rule and indeterminate exceptions, I would stick with the approach that I believe the Court’s case law sets forth. “Better the devil we know . . . .” A right of access such as the right at issue here, a nonpermanent right, is not automatically a “taking.” It is a regulation that falls within the scope of Penn Central. Because the Court takes a different view, I respectfully dissent. https://www.supremecourt.gov/opinions/20pdf/20-107_ihdj.pdf MAHANOY AREA SCHOOL DISTRICT v. B. L., A MINOR, BY AND THROUGH HER FATHER, LEVY, ET AL. TLDR: A high school can’t punish a student for Snapchatting “gently caress school gently caress softball gently caress cheer gently caress everything” after not making the varsity cheerleading team or right fielder for softball. Holding / Majority Opinion (Barrett) A public high school student used, and transmitted to her Snapchat friends, vulgar language and gestures criticizing both the school and the school’s cheerleading team. The student’s speech took place outside of school hours and away from the school’s campus. In response, the school suspended the student for a year from the cheerleading team….Although we do not agree with the reasoning of the Third Circuit panel’s majority, we do agree with its conclusion that the school’s disciplinary action violated the First Amendment. B. L. (who, together with her parents, is a respondent in this case) was a student at Mahanoy Area High School, a public school in Mahanoy City, Pennsylvania. At the end of her freshman year, B. L. tried out for a position on the school’s varsity cheerleading squad and for right fielder on a private softball team. She did not make the varsity cheerleading team or get her preferred softball position, but she was offered a spot on the cheerleading squad’s junior varsity team. B. L. did not accept the coach’s decision with good grace, particularly because the squad coaches had placed an entering freshman on the varsity team. That weekend, B. L. and a friend visited the Cocoa Hut, a local convenience store. There, B. L. used her smartphone to post two photos on Snapchat, a social media application that allows users to post photos and videos that disappear after a set period of time. B. L. posted the images to her Snapchat “story,” a feature of the application that allows any person in the user’s “friend” group (B. L. had about 250 “friends”) to view the images for a 24 hour period. The first image B. L. posted showed B. L. and a friend with middle fingers raised; it bore the caption: “gently caress school gently caress softball gently caress cheer gently caress everything.” The second image was blank but for a caption, which read: “Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else?” The caption also contained an upside-down smiley-face emoji. [This went to the school principal, B.L. got suspended from the JV cheerleading squad, litigation ensued.] We have made clear that students do not “shed their constitutional rights to freedom of speech or expression,” even “at the school house gate.” But we have also made clear that courts must apply the First Amendment “in light of the special characteristics of the school environment.” One such characteristic, which we have stressed, is the fact that schools at times stand in loco parentis, i.e., in the place of parents. This Court has previously outlined three specific categories of student speech that schools may regulate in certain circumstances: (1) “indecent,” “lewd,” or “vulgar” speech uttered during a school assembly on school grounds; (2) speech, uttered during a class trip, that promotes “illegal drug use”; and (3) speech that others may reasonably perceive as “bear[ing] the imprimatur of the school,” such as that appearing in a school-sponsored newspaper. Finally, in Tinker, we said schools have a special interest in regulating speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” These special characteristics call for special leeway when schools regulate speech that occurs under its supervision. Unlike the Third Circuit, we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus. The school’s regulatory interests remain significant in some off-campus circumstances. The parties’ briefs, and those of amici, list several types of off-campus behavior that may call for school regulation. These include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers. Even B. L. herself and the amici supporting her would redefine the Third Circuit’s off-campus/on-campus distinction, treating as on campus: all times when the school is responsible for the student; the school’s immediate surroundings; travel en route to and from the school; all speech taking place over school laptops or on a school’s website; speech taking place during remote learning; activities taken for school credit; and communications to school email accounts or phones. And it may be that speech related to extracurricular activities, such as team sports, would also receive special treatment under B. L.’s proposed rule. … we do not now 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, e.g., substantial disruption of learning-related activities or the protection of those who make up a school community. We can, however, mention three features of off-campus speech that often, even if not always, distinguish schools’ efforts to regulate that speech from their efforts to regulate on-campus speech. Those features diminish the strength of the unique educational characteristics that might call for special First Amendment leeway. First, a school, in relation to off-campus speech, will rarely stand in loco parentis. The doctrine of in loco parentis treats school administrators as standing in the place of students’ parents under circumstances where the children’s actual parents cannot protect, guide, and discipline them. Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility. Second, 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. That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all. When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention. Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus. America’s public schools are the nurseries of democracy. Our representative democracy only works if we protect the “marketplace of ideas.” ... Given the many different kinds of off-campus speech, the different potential school-related and circumstance-specific justifications, and the differing extent to which those justifications may call for First Amendment leeway, we can, as a general matter, say little more than this: Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished. We leave for future cases to decide where, when, and how these features mean the speaker’s off-campus location will make the critical difference. This case can, however, provide one example. Consider B. L.’s speech. Putting aside the vulgar language, the listener would hear criticism, of the team, the team’s coaches, and the school—in a word or two, criticism of the rules of a community of which B. L. forms a part. This criticism did not involve features that would place it outside the First Amendment’s ordinary protection. B. L.’s posts, while crude, did not amount to fighting words. And while B. L. used vulgarity, her speech was not obscene as this Court has understood that term. To the contrary, B. L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection. Consider too when, where, and how B. L. spoke. Her posts appeared outside of school hours from a location outside the school. She did not identify the school in her posts or target any member of the school community with vulgar or abusive language. B. L. also transmitted her speech through a personal cellphone, to an audience consisting of her private circle of Snapchat friends. These features of her speech, while risking transmission to the school itself, nonetheless diminish the school’s interest in punishing B. L.’s utterance. But what about the school’s interest, here primarily an interest in prohibiting students from using vulgar language to criticize a school team or its coaches—at least when that criticism might well be transmitted to other students, team members, coaches, and faculty? We can break that general interest into three parts. First, we consider the school’s interest in teaching good manners and consequently in punishing the use of vulgar language aimed at part of the school community. The strength of this anti-vulgarity interest is weakened considerably by the fact that B. L. spoke outside the school on her own time. B. L. spoke under circumstances where the school did not stand in loco parentis. And there is no reason to believe B. L.’s parents had delegated to school officials their own control of B. L.’s behavior at the Cocoa Hut. … Second, the school argues that it was trying to prevent disruption, if not within the classroom, then within the bounds of a school-sponsored extracurricular activity. But we can find no evidence in the record of the sort of “substantial disruption” of a school activity or a threatened harm to the rights of others that might justify the school’s action. Rather, the record shows that discussion of the matter took, at most, 5 to 10 minutes of an Algebra class “for just a couple of days” and that some members of the cheerleading team were “upset” about the content of B. L.’s Snapchats.But when one of B. L.’s coaches was asked directly if she had “any reason to think that this particular incident would disrupt class or school activities other than the fact that kids kept asking . . . about it,” she responded simply, “No.” … Third, the school presented some evidence that expresses (at least indirectly) a concern for team morale. One of the coaches testified that the school decided to suspend B. L., not because of any specific negative impact upon a particular member of the school community, but “based on the fact that there was negativity put out there that could impact students in the school.” There is little else, however, that suggests any serious decline in team morale—to the point where it could create a substantial interference in, or disruption of, the school’s efforts to maintain team cohesion. As we have previously said, simple “undifferentiated fear or apprehension . . . is not enough to overcome the right to freedom of expression.” … Although we do not agree with the reasoning of the Third Circuit’s panel majority, for the reasons expressed above, resembling those of the panel’s concurring opinion, we nonetheless agree that the school violated B. L.’s First Amendment rights. The judgment of the Third Circuit is therefore affirmed. It is so ordered Lineup: Breyer, joined by Roberts, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett. Concurrence by Alito, joined by Gorsuch. Dissent by Thomas. Concurrence (Alito, joined by Gorsuch): I join the opinion of the Court but write separately to explain my understanding of the Court’s decision and the framework within which I think cases like this should be analyzed. This is the first case in which we have considered the constitutionality of a public school’s attempt to regulate true off-premises student speech, and therefore it is important that our opinion not be misunderstood. The Court holds—and I agree—that: the First Amendment permits public schools to regulate some student speech that does not occur on school premises during the regular school day; this authority is more limited than the authority that schools exercise with respect to on-premises speech; courts should be “skeptical” about the constitutionality of the regulation of off-premises speech; the doctrine of in loco parentis “rarely” applies to off-premises speech; public school students, like all other Americans, have the right to express “unpopular” ideas on public issues, even when those ideas are expressed in language that some find “‘inappropriate ’” or “‘hurtful’”; public schools have the duty to teach students that freedom of speech, including unpopular speech, is essential to our form of self-government; the Mahanoy Area High School violated B. L.’s First Amendment rights when it punished her for the messages she posted on her own time while away from school premises; and the judgment of the Third Circuit must therefore be affirmed. I also agree that it is not prudent for us to attempt at this time to “set forth a broad, highly general First Amendment rule” governing all off-premises speech. But in order to understand what the Court has held, it is helpful to consider the framework within which efforts to regulate off-premises speech should be analyzed. I start with this threshold question: Why does the First Amendment ever allow the free-speech rights of public school students to be restricted to a greater extent than the rights of other juveniles who do not attend a public school? As the Court recognized in Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 509 (1969), when a public school regulates student speech, it acts as an arm of the State in which it is located. Suppose that B. L. had been enrolled in a private school and did exactly what she did in this case—send out vulgar and derogatory messages that focused on her school’s cheerleading squad. The Commonwealth of Pennsylvania would have had no legal basis to punish her and almost certainly would not have even tried. So why should her status as a public school student give the Commonwealth any greater authority to punish her speech? Our cases involving the regulation of student speech have not directly addressed this question. All those cases involved either in-school speech or speech that was tantamount to in-school speech. And in those cases, the Court appeared to take it for granted that “the special characteristics of the school environment” justified special rules. Why the Court took this for granted is not hard to imagine. As a practical matter, it is impossible to see how a school could function if administrators and teachers could not regulate on-premises student speech, including by imposing content-based restrictions in the classroom. In a math class, for example, the teacher can insist that students talk about math, not some other subject. … Because no school could operate effectively if teachers and administrators lacked the authority to regulate in-school speech in these ways, the Court may have felt no need to specify the source of this authority or to explain how the special rules applicable to in-school student speech fit into our broader framework of free-speech case law. But when a public school regulates what students say or write when they are not on school grounds and are not participating in a school program, the school has the obligation to answer the question with which I began: Why should enrollment in a public school result in the diminution of a student’s free-speech rights? The only plausible answer that comes readily to mind is consent, either express or implied. The theory must be that by enrolling a child in a public school, parents consent on behalf of the child to the relinquishment of some of the child’s free-speech rights. This understanding is consistent with the conditions to which an adult would implicitly consent by enrolling in an adult education class run by a unit of state or local government. If an adult signs up for, say, a French class, the adult may be required to speak French, to answer the teacher’s questions, and to comply with other rules that are imposed for the sake of orderly instruction. If in loco parentis is transplanted from Blackstone’s England to the 21st century United States, what it amounts to is simply a doctrine of inferred parental consent to a public school’s exercise of a degree of authority that is commensurate with the task that the parents ask the school to perform. So how much authority to regulate speech do parents implicitly delegate when they enroll a child at a public school? The answer must be that parents are treated as having relinquished the measure of authority that the schools must be able to exercise in order to carry out their state-mandated educational mission, as well as the authority to perform any other functions to which parents expressly or implicitly agree—for example, by giving permission for a child to participate in an extracurricular activity or to go on a school trip. I have already explained what this delegated authority means with respect to student speech during standard classroom instruction. And it is reasonable to infer that this authority extends to periods when students are in school but are not in class, for example, when they are walking in a hall, eating lunch, congregating outside before the school day starts, or waiting for a bus after school. … A public school’s regulation of off-premises student speech is a different matter. While the decision to enroll a student in a public school may be regarded as conferring the authority to regulate some off-premises speech, enrollment cannot be treated as a complete transfer of parental authority over a student’s speech. In our society, parents, not the State, have the primary authority and duty to raise, educate, and form the character of their children. … The degree to which enrollment in a public school can be regarded as a delegation of authority over off-campus speech depends on the nature of the speech and the circumstances under which it occurs. I will not attempt to provide a complete taxonomy of off-premises speech, but relevant lower court cases tend to fall into a few basic groups. And with respect to speech in each of these groups, the question that courts must ask is whether parents who enroll their children in a public school can reasonably be understood to have delegated to the school the authority to regulate the speech in question. One category of off-premises student speech falls easily within the scope of the authority that parents implicitly or explicitly provide. This category includes speech that takes place during or as part of what amounts to a temporal or spatial extension of the regular school program, e.g., online instruction at home, assigned essays or other homework, and transportation to and from school. … At the other end of the spectrum, there is a category of speech that is almost always beyond the regulatory authority of a public school. This is student speech that is not expressly and specifically directed at the school, school administrators, teachers, or fellow students and that addresses matters of public concern, including sensitive subjects like politics, religion, and social relations. Speech on such matters lies at the heart of the First Amendment’s protection, and the connection between student speech in this category and the ability of a public school to carry out its instructional program is tenuous. If a school tried to regulate such speech, the most that it could claim is that offensive off-premises speech on important matters may cause controversy and recriminations among students and may thus disrupt instruction and good order on school premises. But it is a “bedrock principle” that speech may not be suppressed simply because it expresses ideas that are “offensive or disagreeable.” … Between these two extremes (i.e., off-premises speech that is tantamount to on-campus speech and general statements made off premises on matters of public concern) lie the categories of off-premises student speech that appear to have given rise to the most litigation. A survey of lower court cases reveals several prominent categories. ... One group of cases involves perceived threats to school administrators, teachers, other staff members, or students….Another common category involves speech that criticizes or derides school administrators, teachers, or other staff members. Schools may assert that parents who send their children to a public school implicitly authorize the school to demand that the child exhibit the respect that is required for orderly and effective instruction, but parents surely do not relinquish their children’s ability to complain in an appropriate manner about wrongdoing, dereliction, or even plain incompetence. Perhaps the most difficult category involves criticism or hurtful remarks about other students. Bullying and severe harassment are serious (and age-old) problems, but these concepts are not easy to define with the precision required for a regulation of speech. The present case does not fall into any of these categories. Instead, it simply involves criticism (albeit in a crude manner) of the school and an extracurricular activity. … If today’s decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory. Dissent (Thomas) B. L., a high school student, sent a profanity-laced message to hundreds of people, including classmates and teammates. The message included a picture of B. L. raising her middle finger and captioned “F*** school” and “f*** cheer.” This message was juxtaposed with another, which explained that B. L. was frustrated that she failed to make the varsity cheerleading squad. The cheerleading coach responded by disciplining B. L. The Court overrides that decision—without even mentioning the 150 years of history supporting the coach. Using broad brushstrokes, the majority outlines the scope of school authority….But the majority omits important detail. What authority does a school have when it operates in loco parentis? How much less authority do schools have over off-campus speech and conduct? And how does a court decide if speech is on or off campus? Disregarding these important issues, the majority simply posits three vague considerations and reaches an outcome. A more searching review reveals that schools historically could discipline students in circumstances like those presented here. Because the majority does not attempt to explain why we should not apply this historical rule and does not attempt to tether its approach to anything stable, I respectfully dissent. … Cases and treatises from [the time of the 14th Amendment’s ratification] reveal that public schools retained substantial authority to discipline students. As I have previously explained, that authority was near plenary while students were at school. Authority also extended to when students were traveling to or from school. And, although schools had less authority after a student returned home, it was well settled that they still could discipline students for off-campus speech or conduct that had a proximate tendency to harm the school environment. Perhaps the most familiar example applying this rule is a case where a student, after returning home from school, used “disrespectful language” against a teacher—he called the teacher “old”—“in presence of the [teacher] and of some of his fellow pupils.” The Vermont Supreme Court held that the teacher could discipline a student for this speech...This rule was widespread. It was consistent with “the universal custom” in New England. Various cases, treatises, and school manuals endorsed it.* … Some courts made statements that, if read in isolation, could suggest that schools had no authority at all to regulate off-campus speech. But, these courts made it clear that the rule against regulating off-campus speech applied only when that speech was “nowise connected with the management or successful operation of the school.” In other words, they followed Lander: A school can regulate speech when it occurs off campus, so long as it has a proximate tendency to harm the school, its faculty or students, or its programs. If there is a good constitutional reason to depart from this historical rule, the majority and the parties fail to identify it. I would thus apply the rule. Assuming that B. L.’s speech occurred off campus, the purpose and effect of B. L.’s speech was “to degrade the [program and cheerleading staff]” in front of “other pupils,” thus having “a direct and immediate tendency to . . . subvert the [cheerleading coach’s] authority.” As a result, the coach had authority to discipline B. L. … This is not the first time the Court has chosen intuition over history when it comes to student speech. The larger problem facing us today is that our student-speech cases are untethered from any textual or historical foundation. That failure leads the majority to miss much of the analysis relevant to these kinds of cases. Consider the Court’s longtime failure to grapple with the historical doctrine of in loco parentis. As I have previously explained, the Fourteenth Amendment was ratified against the background legal principle that publicly funded schools operated not as ordinary state actors, but as delegated substitutes of parents. This principle freed schools from the constraints the Fourteenth Amendment placed on other government actors. “[N]o one doubted the government’s ability to educate and discipline children as private schools did,” including “through strict discipline . . . for behavior the school considered disrespectful or wrong.” “The doctrine of in loco parentis limited the ability of schools to set rules and control their classrooms in almost no way.” Plausible arguments can be raised in favor of departing from that historical doctrine...The Court, however,...simply abandoned the foundational rule without mentioning it. … Unlike Tinker, which involved a school’s authority under a straightforward fact pattern, this case involves speech made in one location but capable of being received in countless others—an issue that has been aggravated exponentially by recent technological advances. The Court’s decision not to create a solid foundation in Tinker, and now here not to consult the relevant history, predictably causes the majority to ignore relevant analysis. First, the majority gives little apparent significance to B. L.’s decision to participate in an extracurricular activity. But the historical test suggests that authority of schools over off-campus speech may be greater when students participate in extracurricular programs. Second, the majority fails to consider whether schools often will have more authority, not less, to discipline students who transmit speech through social media. Because off-campus speech made through social media can be received on campus (and can spread rapidly to countless people), it often will have a greater proximate tendency to harm the school environment than will an off-campus in-person conversation. Third, and relatedly, the majority uncritically adopts the assumption that B. L.’s speech, in fact, was off campus. But, the location of her speech is a much trickier question than the majority acknowledges. Because speech travels, schools sometimes may be able to treat speech as on campus even though it originates off campus. Nobody doubts, for example, that a school has in loco parentis authority over a student (and can discipline him) when he passes out vulgar flyers on campus—even if he creates those flyers off campus. The same may be true in many contexts when social media speech is generated off campus but received on campus. … The Court transparently takes a common-law approach to today’s decision. In effect, it states just one rule: Schools can regulate speech less often when that speech occurs off campus. It then identifies this case as an “example” and “leav[es] for future cases” the job of developing this new common-law doctrine. But the Court’s foundation is untethered from anything stable, and courts (and schools) will almost certainly be at a loss as to what exactly the Court’s opinion today means. Perhaps there are good constitutional reasons to depart from the historical rule, and perhaps this Court and lower courts will identify and explain these reasons in the future. But because the Court does not do so today, and because it reaches the wrong result under the appropriate historical test, I respectfully dissent https://www.supremecourt.gov/opinions/20pdf/20-255_g3bi.pdf
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Jun 23, 2021 18:20
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The Union one is "it can be done, but they farm owner has to be paid for it?" if I read it right? So really a way to ensure that those farmers get a nice extra slice of cash while still probably doing all sorts of other anti-union things anyway.
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Jun 23, 2021 18:27
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Staluigi posted:My weekly law lmao comes from reading Thomas' lone dissent in the Brandi Levi case sure to be discussed
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Jun 23, 2021 18:34
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It's really funny that an insane union decision came down right after an article arguing that it's not a 6-3 court it's a 3-3-3 court was published.
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Jun 23, 2021 18:42
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Opinions! 3 of 4 for June 23. 8 opinions left after today, IIRC. LANGE v. CALIFORNIA TLDR: The police can’t always burst into someone’s house without a warrant in pursuant of a fleeing misdemeanor suspect. Holding / Majority Opinion (Kagan) The Fourth Amendment ordinarily requires that police officers get a warrant before entering a home without permission. But an officer may make a warrantless entry when “the exigencies of the situation” create a compelling law enforcement need. The question presented here is whether the pursuit of a fleeing misdemeanor suspect always—or more legally put, categorically—qualifies as an exigent circumstance. We hold it does not. A great many misdemeanor pursuits involve exigencies allowing warrantless entry. But whether a given one does so turns on the particular facts of the case. This case began when petitioner Arthur Lange drove past a California highway patrol officer in Sonoma. Lange, it is fair to say, was asking for attention: He was listening to loud music with his windows down and repeatedly honking his horn. The officer began to tail Lange, and soon afterward turned on his overhead lights to signal that Lange should pull over. By that time, though, Lange was only about a hundred feet (some four-seconds drive) from his home. Rather than stopping, Lange continued to his driveway and entered his attached garage. The officer followed Lange in and began questioning him. Observing signs of intoxication, the officer put Lange through field sobriety tests. Lange did not do well, and a later blood test showed that his blood-alcohol content was more than three times the legal limit. The State charged Lange with the misdemeanor of driving under the influence of alcohol, plus a (lower-level) noise infraction. Lange moved to suppress all evidence obtained after the officer entered his garage, arguing that the warrantless entry had violated the Fourth Amendment. … The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” As that text makes clear, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” That standard “generally requires the obtaining of a judicial warrant” before a law enforcement officer can enter a home without permission. But not always: The “warrant requirement is subject to certain exceptions.” One important exception is for exigent circumstances. It applies when “the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.” The exception enables law enforcement officers to handle “emergenc[ies]”—situations presenting a “compelling need for official action and no time to secure a warrant.” Over the years, this Court has identified several such exigencies. An officer, for example, may “enter a home without a warrant to render emergency assistance to an injured occupant[,] to protect an occupant from imminent injury,” or to ensure his own safety. So too, the police may make a warrantless entry to “prevent the imminent destruction of evidence” or to “prevent a suspect’s escape.”In those circumstances, the delay required to obtain a warrant would bring about “some real immediate and serious consequences”—and so the absence of a warrant is excused. Our cases have generally applied the exigent-circumstances exception on a “case-by-case basis.” ...The question here is whether to use that approach, or instead apply a categorical warrant exception, when a suspected misdemeanant flees from police into his home. Under the usual case-specific view, an officer can follow the misdemeanant when, but only when, an exigency—for example, the need to prevent destruction of evidence—allows insufficient time to get a warrant. The appointed amicus asks us to replace that case-by-case assessment with a flat (and sweeping) rule finding exigency in every case of misdemeanor pursuit. In her view, those “entries are categorically reasonable, regardless of whether” any risk of harm (like, again, destruction of evidence) “materializes in a particular case.”The fact of flight from the officer, she says, is itself enough to justify a warrantless entry. … [Thomas doesn’t join this Part II-A] The place to start is with our often-stated view of the constitutional interest at stake: the sanctity of a person’s living space. “[W]hen it comes to the Fourth Amendment, the home is first among equals.” At the Amendment’s “very core,” we have said, “stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion.”...So we are not eager—more the reverse—to print a new permission slip for entering the home without a warrant. The amicus argues, though, that we have already created the rule she advocates. In United States v. Santana, 427 U. S. 38 (1976), the main case she relies on, police officers drove to Dominga Santana’s house with probable cause to think that Santana was dealing drugs, a felony under the applicable law. When the officers pulled up, they saw Santana standing in her home’s open doorway, some 15 feet away. As they got out of the van and yelled “police,” Santana “retreated into [the house’s] vestibule.” The officers followed her in, and discovered heroin. We upheld the warrantless entry as one involving a police “hot pursuit,” even though the chase “ended almost as soon as it began.” Citing “a realistic expectation that any delay would result in destruction of evidence,” we recognized the officers’ “need to act quickly.” But we framed our holding in broader terms: Santana’s “act of retreating into her house,” we stated, could “not defeat an arrest” that had “been set in motion in a public place.” Ibid. The amicus takes that statement to support a flat rule permitting warrantless home entry when police officers (with probable cause) are pursuing any suspect—whether a felon or a misdemeanant. … We disagree with that broad understanding of Santana, as we have suggested before. In rejecting the amicus’s view, we see no need to consider Lange’s counterargument that Santana did not establish any categorical rule—even one for fleeing felons. Assuming Santana treated fleeing-felon cases categorically (that is, as always presenting exigent circumstances allowing warrantless entry), it still said nothing about fleeing misdemeanants. We said as much in Stanton, when we approved qualified immunity for an officer who had pursued a suspected misdemeanant into a home. Describing the same split of authority we took this case to address, we stated that “the law regarding warrantless entry in hot pursuit of a fleeing misdemeanant is not clearly established” (so that the officer could not be held liable for damages). … Key to resolving that issue are two facts about misdemeanors: They vary widely, but they may be (in a word) “minor.” In California and elsewhere, misdemeanors run the gamut of seriousness. … This Court has held that when a minor offense alone is involved, police officers do not usually face the kind of emergency that can justify a warrantless home entry. In Welsh, officers responded to a call about a drunk driver only to discover he had abandoned his vehicle and walked home. So no police pursuit was necessary, hot or otherwise. The officers just went to the driver’s house, entered without a warrant, and arrested him for a “non-jailable” offense. The State contended that exigent circumstances supported the entry because the driver’s “blood-alcohol level might have dissipated while the police obtained a warrant.” We rejected that argument on the ground that the driver had been charged with only a minor offense. “[T]he gravity of the underlying offense,” we reasoned, is “an important factor to be considered when determining whether any exigency exists.” “[W]hen only a minor offense has been committed” (again, without any flight), there is reason to question whether a compelling law enforcement need is present; so it is “particularly appropriate” to “hesitat[e] in finding exigent circumstances.” And we concluded: “[A]pplication of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense” is involved. Add a suspect’s flight and the calculus changes—but not enough to justify the amicus’s categorical rule. … Our Fourth Amendment precedents thus point toward assessing case by case the exigencies arising from misdemeanants’ flight. That approach will in many, if not most, cases allow a warrantless home entry. When the totality of circumstances shows an emergency—such as imminent harm to others, a threat to the officer himself, destruction of evidence, or escape from the home—the police may act without waiting. And those circumstances, include the flight itself. But the need to pursue a misdemeanant does not trigger a categorical rule allowing home entry, even absent a law enforcement emergency. … [Thomas rejoins here with Part II-B] The common law in place at the Constitution’s founding leads to the same conclusion. That law, we have many times said, may be “instructive in determining what sorts of searches the Framers of the Fourth Amendment regarded as reasonable.” And the Framers’ view provides a baseline for our own day: The Amendment “must provide at a minimum the degree of protection it afforded when it was adopted.” Sometimes, no doubt, the common law of the time is hard to figure out: The historical record does not reveal a limpid legal rule. Here, we find it challenging to map every particular of the common law’s treatment of warrantless home entries. But the evidence is clear on the question before us: The common law did not recognize a categorical rule enabling such an entry in every case of misdemeanor pursuit. … The flight of a suspected misdemeanant does not always justify a warrantless entry into a home. An officer must consider all the circumstances in a pursuit case 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 from the home. But when the officer has time to get a warrant, he must do so—even though the misdemeanant fled. Because the California Court of Appeal applied the categorical rule we reject today, we vacate its judgment and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Lineup: Kagan, joined by Breyer, Sotomayor, Gorsuch, Kavanaugh, and Barrett, and Thomas as to all but Part II-A. Concurrence by Kavanaugh. Concurrence in part and concurrence in the judgment by Thomas, joined by Kavanaugh. Concurrence in the judgement by Roberts, joined by Alito. Concurrence: (Kavanaugh) The Court holds that an officer may make a warrantless entry into a home when pursuing a fleeing misdemeanant if an exigent circumstance is also present—for example, when there is a risk of escape, destruction of evidence, or harm to others. I join the Court’s opinion. I also join Part II of JUSTICE THOMAS’s concurrence regarding how the exclusionary rule should apply to hot pursuit cases. I add this brief concurrence simply to underscore that, in my view, there is almost no daylight in practice between the Court’s opinion and THE CHIEF JUSTICE’s opinion concurring in the judgment. In his thoughtful opinion, THE CHIEF JUSTICE concludes that pursuit of a fleeing misdemeanant should itself constitute an exigent circumstance. The Court disagrees. As I see it, however, the difference between THE CHIEF JUSTICE’s approach and the Court’s approach will be academic in most cases. That is because cases of fleeing misdemeanants will almost always also involve a recognized exigent circumstance—such as a risk of escape, destruction of evidence, or harm to others—that will still justify warrantless entry into a home. As Lange’s able counsel forthrightly acknowledged at oral argument, the approach adopted by the Court today will still allow the police to make a warrantless entry into a home “nine times out of 10 or more” in cases involving pursuit of a fleeing misdemeanant. Importantly, moreover, the Court’s opinion does not disturb the long-settled rule that pursuit of a fleeing felon is itself an exigent circumstance justifying warrantless entry into a home. In other words, the police may make a warrantless entry into the home of a fleeing felon regardless of whether other exigent circumstances are present. With those observations, I join the Court’s opinion. Concurrence in part and concurrence in the judgment by Thomas, joined by Kavanaugh. I join the majority opinion, except for Part II–A, which correctly rejects the argument that suspicion that a person committed any crime justifies warrantless entry into a home in hot pursuit of that person. I write separately to note two things: the general case-by-case rule that the Court announces today is subject to historical, categorical exceptions; and under our precedent, the federal exclusionary rule does not apply to evidence discovered in the course of pursuing a fleeing suspect. The majority sets out a general rule requiring a case-by-case inquiry when an officer enters a home without a warrant in pursuit of a person suspected of committing a misdemeanor. But history suggests several categorical exceptions to this rule. First, warrantless entry is categorically allowed when a person is arrested and escapes. This exception is potentially very broad. Second, authorities at common law categorically allowed warrantless entry when in hot pursuit of a person who committed an affray. Third, those authorities allowed the same for what the majority calls certain “pre-felonies.” Finally, some authorities appear to have allowed warrantless entry when in pursuit of a person who had breached the peace. What crimes amounted to “breach of peace” for purposes of warrantless entry is not immediately clear. … I also write to point out that even if the state courts on remand conclude that the officer’s entry here was unlawful, the federal exclusionary rule does not require suppressing any evidence. “ [O]fficers who violated the Fourth Amendment were traditionally considered trespassers.” For that reason, “individuals subject to unconstitutional searches or seizures historically enforced their rights through tort suits or self-help.” But beginning in the 20th century, this Court created a new remedy: exclusion of evidence in criminal trials. Establishing a violation of the Fourth Amendment, though, does not automatically entitle a criminal defendant to exclusion of evidence. Far from it. “[T]he exclusionary rule is not an individual right.” It is a “‘prudential’ doctrine created by this Court,” and there is always a “high obstacle for those urging application of the rule,” Relevant here, the rule “does not apply when the costs of exclusion outweigh its deterrent benefits.” On the benefits side, “we have said time and again that the sole” factor courts can consider is “deter[ring] misconduct by law enforcement.” And not just any misconduct. The exclusionary rule developed to deter “intentional conduct that was patently unconstitutional.” For the past several decades, we have thus declined to exclude evidence where exclusion would not substantially deter “intentional” and “flagrant” behavior. … On the other side of the ledger, we consider all “costs.” One cost is especially salient: excluding evidence under the Fourth Amendment always obstructs the “‘truth-finding functions of judge and jury.’” This interference with the purpose of the judicial system also creates a downstream risk that “some guilty defendants may go free or receive reduced sentences.” By itself, this high cost makes exclusion under our precedent rarely appropriate. “Suppression of evidence . . . has always been our last resort, not our first impulse.” When additional costs are present, the balance tips decisively against exclusion. Cases of fleeing suspects involve more than enough added costs to render the exclusionary rule inapplicable. First, our precedents make clear that the exclusionary rule does not apply when it would encourage bad conduct by criminal defendants….Second, our precedents similarly make clear that criminal defendants cannot use the exclusionary rule as “a shield against” their own bad conduct. … Courts should follow the plain dictates of our precedent: Officers cannot chase a fleeing person into a home simply because that person is suspected of having committed any misdemeanor, but if the officer nonetheless does so, exclusion under the Fourth Amendment is improper. Criminal defendants must rely on other remedies. Concurrence in the judgement (Roberts, joined by Alito) Suppose a police officer on patrol responds to a report of a man assaulting a teenager. Arriving at the scene, the officer sees the teenager vainly trying to ward off the assailant. The officer attempts to place the assailant under arrest, but he takes off on foot. He leads the officer on a chase over several blocks as the officer yells for him to stop. With the officer closing in, the suspect leaps over a fence and then stands on a home’s front yard. He claims it’s his home and tells the officer to stay away. What is the officer to do? The Fourth Amendment and our precedent—not to mention common sense—provide a clear answer: The officer can enter the property to complete the arrest he lawfully initiated outside it. But the Court today has a different take. Holding that flight, on its own, can never justify a warrantless entry into a home (including its curtilage), the Court requires that the officer: (1) stop and consider whether the suspect—if apprehended—would be charged with a misdemeanor or a felony, and (2) tally up other “exigencies” that might be present or arise, ante, at 1, 4, before (3) deciding whether he can complete the arrest or must instead seek a warrant—one that, in all likelihood, will not arrive for hours. Meanwhile, the suspect may stroll into the home and then dash out the back door. Or, for all the officer knows, get a gun and take aim from inside. The Constitution does not demand this absurd and dangerous result. We should not impose it. As our precedent makes clear, hot pursuit is not merely a setting in which other exigent circumstances justifying warrantless entry might emerge. It is itself an exigent circumstance. And we have never held that whether an officer may enter a home to complete an arrest turns on what the fleeing individual was suspected of doing before he took off, let alone whether that offense would later be charged as a misdemeanor or felony. It is the flight, not the underlying offense, that has always been understood to justify the general rule: “Police officers may enter premises without a warrant when they are in hot pursuit of a fleeing suspect.” The Court errs by departing from that well-established rule. … Almost a half century ago in United States v. Santana, 427 U. S. 38 (1976), we considered whether hot pursuit supports warrantless home entry. We held that such entry was justified when Santana “retreat[ed] into her house” after a drug transaction upon hearing law enforcement “shout[] ‘police’” and seeing them “display[] their identification.” As we explained, “a suspect may not defeat an arrest which has been set in motion in a public place . . . by the expedient of escaping to a private place.” Our interpretation of the Fourth Amendment did not hinge on whether the offense that precipitated her withdrawal was a felony or a misdemeanor. We have repeatedly and consistently reaffirmed that hot pursuit is itself an exigent circumstance….These cases, it bears repeating, have not viewed hot pursuit as merely the background against which other exigencies justifying warrantless entry might arise. And our decisions do not dismiss the existence of an exigency—including hot pursuit—based on the underlying offense that precipitated law enforcement action, even if known. To the contrary, until today, we have explicitly rejected invitations to do so. … A proper consideration of the interests at stake confirms the position our precedent amply supports. Pursuit implicates substantial government interests, regardless of the offense precipitating the flight. It is the flight, not the underlying offense, that justifies the entry. At the start, every hot pursuit implicates the government interest in ensuring compliance with law enforcement...Flight also always involves the “paramount” government interest in public safety...And the problems do not end there because hot pursuit often gives rise to multiple other exigencies, such as destruction of evidence, violence, and escape. … Because the California Court of Appeals assumed that hot pursuit categorically permits warrantless entry, I would vacate the decision below to allow consideration of whether the circumstances at issue in this case fall within an exception to the general rule of the sort outlined above. Lange would be free to argue that his is the “unusual case,” in which the general rule that hot pursuit justifies warrantless entry does not apply. Now consider the regime the Court imposes. In rejecting the amicus’ proposed categorical rule favoring warrantless home entry, the Court creates a categorical rule of its own: Flight alone can never justify warrantless entry into a home or its curtilage. Instead, flight is but one factor of unclear weight to “consider,” and it must be supplemented with at least one additional exigency. … Recall the assault we started with. The officer was closing in on the suspect when he hopped the fence and stopped in a yard. The officer starts to climb over the fence to arrest him, but wait—was the assault a misdemeanor or a felony? In Lange’s State of California, it could have been either depending on the identity of the victim, the amount of force used, and whether there was a weapon involved. How much force was the man using against the teenager? Is this really the assailant’s home in the first place? Pretty suspicious that he jumped the fence just as the officer was about to grab him. If it is his home, are there people inside and, if so, how many? And why would the man run from a mere fight— does he have something more serious to hide? By this time, of course, the assailant has probably gone out the back door or down the fire escape and is blocks away, with the officer unable to give a useful description— except for how he looks from behind. https://www.supremecourt.gov/opinions/20pdf/20-18_cb7d.pdf
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Jun 23, 2021 18:47
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AtomikKrab posted:The Union one is "it can be done, but they farm owner has to be paid for it?" if I read it right? So really a way to ensure that those farmers get a nice extra slice of cash while still probably doing all sorts of other anti-union things anyway. Basically, yeah. How much that's worth is an open question. ...I'll get to Collins v. Yellen today but it's 81 pages of bullshit: ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, KAVANAUGH, and BARRETT, JJ., joined in full; in which KAGAN and BREYER, JJ., joined as to all but Part III–B; in which GORSUCH, J., joined as to all but Part III–C; and in which SOTOMAYOR, J., joined as to Parts I, II, and III–C. THOMAS, J., filed a concurring opinion. GORSUCH, J., filed an opinion concurring in part. KAGAN, J., filed an opinion concurring in part and concurring in the judgment, in which BREYER and SOTOMAYOR, JJ., joined as to Part II. SOTOMAYOR, J., filed an opinion concurring in part and dissenting in part, in which BREYER, J., joined. ...6 pages of just the syllabus.
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Jun 23, 2021 18:49
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I'm not a dedicated SCOTUS follower, is each opinion being split into a billion different parts with a different combination of concurring and dissenting justices more or less common these days than it's been historically?
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Jun 23, 2021 19:10
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raminasi posted:I'm not a dedicated SCOTUS follower, is each opinion being split into a billion different parts with a different combination of concurring and dissenting justices more or less common these days than it's been historically? It happens a lot more than you would think, because it happens in the kind of complex cases that don't get followed by people who aren't lawyers on whatever arcane subject is involved, but not nearly as often in more political cases.
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Jun 23, 2021 19:16
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HashtagGirlboss posted:The Cedar Point Nursery decision seems to be a doozy. AtomikKrab posted:The Union one is "it can be done, but they farm owner has to be paid for it?" if I read it right? So really a way to ensure that those farmers get a nice extra slice of cash while still probably doing all sorts of other anti-union things anyway.
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Jun 23, 2021 19:17
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if it's a taking so is all other regulation. More importantly, if it's a taking it's de minimis.
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Jun 23, 2021 19:19
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I think you can make a reasonable distinction between "you cannot operate a combination tannery and garbage incinerator on your residential lot" and "you must let these people physically enter your property." Like Breyer says, I think the cleanest way forward is for California to be given the option of foreclosing injunctive relief by providing compensation. Dead Reckoning fucked around with this message at 19:28 on Jun 23, 2021 |
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Jun 23, 2021 19:25
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Dead Reckoning posted:I think you can make a reasonable distinction between "you cannot operate a combination tannery and garbage incinerator on your residential lot" and "you must let these people physically enter your property." the problem for that distinction is that "you must let these people physically enter your property" is a normal and common part of regulation (inspectors, etc), so common the majority opinion needs to go to great, unconvincing lengths to distinguish this case from all those other cases further, as HA points out, the only value here is "de minimus" - the point of barring access is to block the regulatory scheme, not because the presence of the people causes any measurable harm to the owner other than they might convince the workers to unionize
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Jun 23, 2021 19:26
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Hieronymous Alloy posted:if it's a taking so is all other regulation. You can practically hear the ALEC lawyers jerking themselves off as they prepare future lawsuits arguing this.
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Jun 23, 2021 19:27
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ulmont posted:Courts should follow the plain dictates of our precedent: Officers cannot chase a fleeing person into a home simply because that person is suspected of having committed any misdemeanor, but if the officer nonetheless does so, exclusion under the Fourth Amendment is improper. Criminal defendants must rely on other remedies. So basically Thomas is saying that police aren't legally able to pursue somebody into their home without a warrant on mere suspicion of misdemeanor, but if they ignore that and do it anyway any warrantless evidence of misdemeanor they collect is still completely admissible and can be used to charge the suspect? Gee I wonder what cops will decide to do in such instances lol.
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Jun 23, 2021 19:27
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Dead Reckoning posted:I think you can make a reasonable distinction between "you cannot operate a combination tannery and garbage incinerator on your residential lot" and "you must let these people physically enter your property." There are about a million different types of inspectors and state officials who have the right to enter and inspect a business property, from fire marshals to consumer safety inspectors to OSHA inspectors and so forth. Saying "oh, well any time someone who isn't the property owner has a right to enter, that's a taking" is a back-door jab at repealing the entire federal regulatory structure. Now all those regulations can be challenged in light of "takings" jurisprudence and may have to be re-written and re-passed and that's an opportunity for right wing legislators to gut them or even just fail to replace them.
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Jun 23, 2021 19:28
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Sydin posted:So basically Thomas is saying that police aren't legally able to pursue somebody into their home without a warrant on mere suspicion of misdemeanor, but if they ignore that and do it anyway any warrantless evidence of misdemeanor they collect is still completely admissible and can be used to charge the suspect? Gee I wonder what cops will decide to do in such instances lol. the solution is that the cops can prosecute their brethren who managed to just put a criminal away, as happened ever so many times before the exclusionary rule came about
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Jun 23, 2021 19:28
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evilweasel posted:the solution is that the cops can prosecute their brethren who managed to just put a criminal away, as happened ever so many times before the exclusionary rule came about Nonsense! The homeowner can also pursue a civil remedy! All he has to do is hire an attorney while incarcerated and then overcome the officer's immunity protection and then shove both thumbs up his own rear end and spin
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Jun 23, 2021 19:31
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The thing to remember about union organizers is they are often laborers that work there anyway. The California regulation was more saying that farmers had to allow union organizing activities in the off times before a shift, during lunch, and after a shift 1/3rd of the year. The SCOTUS today just said that California is powerless to require that farmers allow their own employees to organize off the clock on their property.
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Jun 23, 2021 20:01
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We’re talking agriculture. Compensate them with a literal peppercorn for symbolism’s sake.
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Jun 23, 2021 20:06
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Hieronymous Alloy posted:There are about a million different types of inspectors and state officials who have the right to enter and inspect a business property, from fire marshals to consumer safety inspectors to OSHA inspectors and so forth. Do any of those inspectors make multiple visits per day for a full third of the year? It's a drastically different level of invasion than dealing with OSHA or a code inspector for a day or two
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Jun 23, 2021 20:15
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Javid posted:Do any of those inspectors make multiple visits per day for a full third of the year? It's a drastically different level of invasion than dealing with OSHA or a code inspector for a day or two Label requirements are taking a full fifth of the space on my product packaging! Minimum wage requirements are taking [some fraction of] my profits!
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Jun 23, 2021 20:23
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Which, again, is clearly distinct from someone having a right to physically enter and occupy your property.Hieronymous Alloy posted:There are about a million different types of inspectors and state officials who have the right to enter and inspect a business property, from fire marshals to consumer safety inspectors to OSHA inspectors and so forth. Dead Reckoning fucked around with this message at 20:43 on Jun 23, 2021 |
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Jun 23, 2021 20:41
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