Continuing a Discussion of the Supreme Court's Term: Constitutional Issues

Often, in recent years, we have used this third column for the discussion of what I think of as "structural" constitutional issues, leaving for the fourth column the more rights based constitutional issues. I won't make that distinction this time. There was really only one structural case worth discussing, in my own unappealable opinion. There was the tribal sovereignty issue of US v. Cooley. After that I will turn to rights based matters that come from amendments other than my favorite, other than the first. 

Tribal Sovereignty

Tribes have been doing rather well in the Supreme Court recently, as a group of sovereignty-venerating Justices treat the notion of their sovereignty more seriously than it has sometimes been taken.

McGirt v. Oklahoma is the first instance of this to come to mind. 

This year brought another tribal win: Cooley. The court said that police officers for a tribe have the power to search and to temporarily detain non-Indians on public rights-of-way traveling through a reservation whom they suspect of breaking state or federal law within the reservation. 

The judgment was unanimous.

In the underlying facts, Joshua James Cooley, a non-native, was in his parked truck, asleep, when the officer approached. The officer, James Saylor of the Crow Police, saw two semiautomatic rifles apparently in plain view on Cooley's front seat, and that led him to detain Cooley and initiate a search.

Breyer, in his opinion for the court, acknowledged a concern apparently raised by attorneys for Cooley that if tribes can detain and search non-members they are exercising that power over people who have no part in tribal government and no say in the laws and regulations of the Rez. But that doesn't apply here, because Cooley was suspected of state and federal laws to which he was indisputably subject.

Is Breyer Leaving?  

The opinion is one of several big ones in which Breyer wrote for the court this term. They could all be taken collectively as a swan song if, as rumored, Breyer is on his way out the door. Of course, Breyer could have announced this on the final day of decisions, and did not. But there is no set pattern that he is obliged to follow in these matters.

The argument that he ought to leave, and allow Biden to support someone with similar jurisprudential views and many fewer years under his/her belt, is frankly compelling. After all, if McConnell gets to be Majority Leader in the Senate again in January 2023 then the odds that the Senate will ever even hold hearings on a Biden nominee during the second half of Biden's term are essentially zero. That would be in only the third year of the four-year cycle, but McConnell won't pretend this time around that there is any rule or principle at issue: it will be clear that he is withholding hearings simply because he will have the power to do so.  

Despite Breyer's hesitation (which is humanly understandable -- he may well feel quite vibrant and at the top of his game, and so be reluctant to let go, as other Justices have been before him) I do believe that he will come around in the coming days and will make such an announcement.

But back to Cooley. Sovereignty is a mirage.  Black-robed judges and Justice, living by this mirage, have to take it seriously. or do they? Hold that thought. 

There was no dissent. There was only one brief concurring opinion, from Alito, who appeared unhappy that Breyer hadn't stated with precision just what the holding is. Alito supplied that need, in these words: "On a public right-of-way that traverses an Indian reservation and is primarily patrolled by tribal police, a tribal police officer has the authority to (a) stop a non-Indian motorist if the officer has reasonable suspicion that the motorist may violate or has violated federal or state law, (b) conduct a search to the extent necessary to protect himself or others, and (c) if the tribal officer has probable cause, detain the motorist for the period of time reasonably necessary for a non-tribal officer to arrive on the scene."

Interestingly, the word "sovereignty" does not appear in Alito's brief statement, only the somewhat more modest term "authority."  

Regulatory Takings 

Moving on ... this session brought another decision on the issue of regulatory takings. For years now, since at least the LUCAS case in 1992, SCOTUS has been developing a body of "takings" jurisprudence as to when land use regulations become so onerous that they constitute taking the property, this invoking the fifth amendment requirement for "just compensation."

This year's contribution to that developing body of law is Pakdel v. San Francisco.  This is a per curium issued June 28. 

There is a general rule to the effect that a court should not hear a claim of regulatory taking until the underlying land-use procedure has some finality. In the Pakdel matter, the Ninth Circuit took this to mean that there must have been an exhaustion of state remedies.  

There is a big difference between the two points. The requirement of finality, as expounded by the Supreme Court in a case arising out of Tahoe in 1997, is parallel to the usual rule against interlocutory appeals. The court has to be sure that the Tahoe Regional Planning Agency, or the San Francisco Department of Public Works, or whomever, has firmly made up and announced its institutional view. An exhaustion-of-remedies doctrine, though, would go a good deal further, placing a far greater burden on land owners looking for judicial protection. 

The newsy bit in this decision is the court's statement that Congress "has the option of imposing a strict administrative-exhaustion requirement." This court would apparently be disinclined to find a constitutional infirmity in THAT hypothetical law. But Congress has not done so. 

Given the deadlocked state of our national legislature in general, I do not expect that it will take up that invitation.

A Badge of Slavery 

The second section of the 13th amendment, abolishing slavery, gave the US Congress the authority to enforce the first section, the actual abolition section, "by appropriate legislation." Thus, it acknowledged that a simple statement saying that slavery is no more would not be self-enforcing.

Those simple words, "by appropriate legislation" gave rise to a body of jurisprudence about the "badges and incidents of slavery."  Racial discrimination by private housing developers, for example, has been called a "badge of slavery," an unhappy vestige which Congress is entitled to legislate away. (That makes a better argument for Congressional laws on such matters than the regulation of interstate commerce or the other arguments most often invoked, IMHO.) 

What about a money making venture, run let us say by an educational institution, in which participating students, most of them African-American, are forbidden the opportunity to profit from their own activities in pursuit of this venture, although their (mostly white) coaches are of course remunerated, sometimes quite handsomely? and the colleges themselves with Division I football or basketball programs bring in BILLIONS every year? And the not-so-bright children of (mostly white) celebrities pretend to be volleyball or crew prodigies so they can get admission?  Doesn't any of that seem a bit plantation-lite to anyone? 

Congress has never legislated against the NCAA's badge of slavery. But the Supreme Court dragged the antitrust laws into the service of this cause this term, in NCAA v. Alston.  

The specific question before them involved only education-related benefits. The NCAA has been banning college athletes from receiving ANY form of compensation for their labor. A college hasn't been allowed even to say, "oh, you're having difficulty with your math homework? Perhaps this laptop will help?" Now it can. 

Of course the problem isn't that colleges have been eager to give away educational tools, but the NCAA has stopped them. The issue is that the student athletes want to be able to benefit from their skills and labor. If the colleges are allowed to offer them various forms of supplemental educational assistance, as they now are, the betting is that colleges will soon feel compelled -- by competitive pressure, not by force of law -- to offer them such packages. 

Lange v. California 

The final case we will discuss today is that of Arthur Lange, and of our rights under the fourth amendment.

The fourth refers specifically to one's right to be secure in one's "house" against unreasonable search and seizure. Lange was literally at the moments crucial to this litigation in his garage, which counts as his house under the law.

A police officer, Aaron Weikert, had followed him in the final stage of Weikert's drive home. Weikert's curiosity was piqued because, he says, the car radio was playing very loudly, and Lange was honking his horn, but at nobody.  

Lange, who says he did not see Weikart's police car behind him, drove into his garage and began to close the door. Weikart parked in the driveway and followed Lange into the garage. I'm not sure about the specifics of that moment. Did Weikart duck low so that he got into the garage even as the homeowner was closing the door? Did he stop its motion downward in order to make entry easier for himself? I don't know, but he does not seem to have re-opened a fully closed garage door.   

Once inside, Weikart smelled alcohol. He brought Lange to a hospital, and testing indicated his BAC was 0.245%, well over the legal limit. 

Lange argued to the California courts that his home was his castle, that Weikart made a warrantless move across the lawful moat of that castle, and that evidence gathered thereafter, including crucially the blood test, has to be excluded. 

The California courts rejected this argument, saying that Weikert had been in "hot pursuit" and could lawfully continue that pursuit across the threshold of the garage. 

The court held, 9-0, that the California courts had been in error on this. Hot pursuit in a misdemeanor matter does not by itself, "categorically," constitute the sort of exigent circumstance that can justify a warrantless entry into a home. 

Justice Kagan, in her opinion for the court, cites a case in which a British jurist, Lord Chief Justice Pratt, said that "to enter a man’s house” is to attack “the liberty of the subject” and “destroy the liberty of the kingdom.” That decision was issued in 1763. It would have been very familiar to our founders, who rebelled in order to preserve what they saw as their liberties under the Mother Country's body of law, thirteen years later. 

Tomorrow, if all goes well, I'll finish up this chain of commentary for another session, with some thoughts on the first amendment jurisprudence of the year.