Notable concurring opinions from this term

Sometimes concurring opinions of justices add little to what is in the court’s decision. Other times, however, they take a very different approach and urge a major change in the law. In my last column for SCOTUSblog, I wrote of Justice Clarence Thomas’ astounding concurring opinion in Mullin v. Doe in which he argued that the equal protection clause does not apply to the federal government and that 1954’s Bolling v. Sharpe, which held otherwise, was wrongly decided. There were several other particularly notable concurring opinions that would dramatically alter the law if followed.

Justice Elena Kagan’s concurring opinion in Chiles v. Salazar

In Chiles v. Salazar, the court held that strict scrutiny – the most stringent standard of court review – should be applied to a Colorado law prohibiting conversion therapy for gay, lesbian, and transgender youth, and, as a result, such a ban wrongly discriminated against a counselor based on views she expressed in therapy. The court, in an opinion by Justice Neil Gorsuch, said that the law was a content-based restriction on speech in that the state was prohibiting expression trying to change, but not trying to affirm, a minor’s sexual orientation or gender identity.

Kagan wrote a concurring opinion, joined by Justice Sonia Sotomayor. She began her opinion by stating: “I write only to note that if Colorado had instead enacted a content-based but viewpoint-neutral law, it would raise a different and more difficult question.”

Under current law, a content-based restriction on speech must meet strict scrutiny, and a law can be found to be content-based in either of two ways: a subject-matter restriction (in which it regulates speech based on a topic) or a viewpoint restriction (in which it regulates a particular view).

A case from 1980, Carey v. Brown, is illustrative. Chicago adopted an ordinance prohibiting all picketing in residential neighborhoods unless it was labor picketing connected to a place of employment. The Supreme Court held this regulation unconstitutional. The court explained that the law allowed speech if it was about the subject of labor, but not otherwise. The court said that whenever the government attempts to regulate speech in public places, it must be subject-matter neutral unless the government meets strict scrutiny – that is, the regulation is necessary to achieve a compelling purpose.

Similarly, in the 2000 case of United States v. Playboy Entertainment Group, Inc., the court found that a law that regulated only sexual speech was a subject-matter restriction and had to meet strict scrutiny. A provision of the federal Cable Act prohibited “signal bleed” of sexual images; signal bleed occurs when people receive images from cable stations to which they do not subscribe. The law required that cable companies either completely eliminate signal bleed of sexual images or that sexual programming be shown exclusively during late-night hours. In finding the law unconstitutional, Justice Anthony Kennedy declared: “The speech in question is defined by its content; and the statute which seeks to restrict it is content based.” He explained that the law “applies only to channels primarily dedicated to ‘sexually explicit adult programming or other programming that is indecent.’ … It ‘focuses only on the content of the speech and the direct impact that speech has on its listeners.‘ This is the essence of content-based regulation.”

In these and many other cases, the court found that subject-matter restrictions on speech are content-based and must meet strict scrutiny. In Chiles v. Salazar, Kagan says that she would not have used strict scrutiny if the Colorado law had been a subject-matter restriction instead of a viewpoint restriction. If only viewpoint restrictions, not subject-matter restrictions, must meet strict scrutiny, that would substantially lessen the Constitution’s protection for speech.

Gorsuch’s concurring opinion in Chatrie v. United States

The issue in Chatrie v. United States was whether police use of a geofence is a search for purposes of the Fourth Amendment. A geofence is where police obtain information about all of the cellular devices within a designated area at a specific time. The court in a 6-3 decision, with the majority opinion written by Kagan, concluded that this is a search because it infringes the “reasonable expectation of privacy” that people possess in the location information generated by their cellular devices.

Gorsuch wrote an opinion concurring in the judgment which, if followed, would greatly change the law. He sharply criticized the reasonable expectation of privacy test for determining what is a search. Since the court’s decision in 1966’s Katz v. United States, the court has found that there is a search if there is a government infringement of one’s reasonable expectation of privacy. In Chatrie, Gorsuch wrote, “If Katz has become a familiar feature of our law, it seems to me no more persuasive for it. … It has no basis in the Constitution’s text or history. The Fourth Amendment’s protections do not depend on ‘the breach of some abstract “expectation of privacy” whose contours are left to the judicial imagination.’” 

Gorsuch would take a very different approach to determining whether there is a search. He would have found that there was a search in Chatrie because the Fourth Amendment protects a person’s “effects” and the government obtaining location history is an intrusion into them. He explained that the “word ‘effects’ was understood at the time of the Fourth Amendment’s adoption to embrace most any kind of personal property[,]” and “Mr. Chatrie’s Location History data qualifies as his personal property.”

If followed, Gorsuch’s approach to the Fourth Amendment would reject 60 years of precedents for determining what is a search. This would lessen the protection of privacy. For example, police observing people through drones or cameras on utility poles would not be a search under the Gorsuch approach. But they certainly invade a reasonable expectation of privacy.

Thomas’ concurring opinion in Monsanto Co. v. Durnell

The issue in Monsanto Company v. Durnell was whether a federal statute, the Federal Insecticide, Fungicide, and Rodenticide Act, preempts allowing liability under state tort law for the failure to include warning labels on a product. The case involved the weedkiller Roundup and whether a man who developed cancer, allegedly from its use, could sue the manufacturer for not including warning labels on the product. The Supreme Court, in a 7-2 decision with the majority opinion written by Justice Brett Kavanaugh, found that the federal statute expressly preempted (precluded) such state tort liability. Justice Ketanji Brown Jackson dissented, joined by Gorsuch (not a frequent pairing of justices).

Thomas wrote a concurring opinion in which he made three arguments, each of which would be a dramatic change in the law. First, he said that “the Act likely exceeds Congress’s authority under the Commerce Clause. … This power allows Congress to regulate ‘selling, buying, and bartering’ across state lines. It does not allow Congress to regulate ‘agriculture’ or ‘manufacturing,’ activities entirely ‘separate’ from ‘commerce.’” This was the view of the Supreme Court during the first third of the 20th century when the court struck down many federal laws as exceeding the scope of Congress’ commerce power, but it has been emphatically rejected ever since. It would make many federal laws unconstitutional.

Second, Thomas said that the statute raised the issue of “Congress’s ability to delegate core legislative power to the EPA.” Since 1935, not one federal law has been declared unconstitutional as an excessive delegation of legislative power. Changing this would put a myriad of federal laws in constitutional jeopardy.

Third, Thomas said that “the Act raises questions about the extent to which federal agency action can preempt state law, a form of preemption taken for granted by the parties in this case.” He argued that agency regulations should not have the ability to preempt state law, which also would be a dramatic change in the law.

Justice Brett Kavanaugh’s concurrence in Trump v. Barbara

One other concurring opinion that was surprising, though it did not advocate a change in the law, was Kavanaugh’s concurrence in Trump v. Barbara. Chief Justice John Roberts wrote a majority opinion declaring unconstitutional President Donald Trump’s executive order limiting birthright citizenship. Kavanaugh would have found the executive order constitutional but would have struck it down on statutory grounds.

In his discussion of the constitutional issue in Barbara, Kavanaugh, who previously had embraced originalism, such as in his concurring opinion in New York State Rifle and Pistol Association v. Bruen (which held that there is a Second Amendment right to carry concealed weapons outside the home), wrote in a way that seemingly adopts the perspective of a living Constitution. He stated:

The original constitutional principles do not change absent a constitutional amendment, but the relevant principles—both the rules and exceptions alike—must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution’s Framers. … So too, the issue of temporary visitors who give birth in the United States presents a new and different circumstance than in 1868 given the significant changes in immigration laws and travel.

As a result, Kavanaugh concluded that the Trump executive order limiting birthright citizenship was constitutional, though he would have invalidated it as violating a federal statute.

Of course, the same could be said to justify restrictions on firearms, protection of reproductive autonomy, and limits on campaign spending. All deal with “modern situations that were unknown or unanticipated by the Constitution’s Framers.” Kavanaugh’s words in Trump v. Barbara thus seem quite difficult to reconcile with his professing to be an originalist.