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Legal File – Protection of private property

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MARY REICHARD, HTE: It’s Monday June 28th and it’s The world and everything in it. We are delighted that you are joining us today! Hello. I am Marie Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. The United States Supreme Court issued 10 opinions last week, so Mary and I will be exchanging them today.

REICHARD: Ok, well, let’s get started!

First of all, a unanimous decision that protects the sanctity of the house.

The police have the power to pursue a criminal in a house and they do not need a warrant in such a case. But if the person they’re chasing is just suspected of a crime, the police need a warrant to enter a house.

In this Supreme Court case, a man driving, honking and playing loud music caught the attention of an officer who followed him to his home and carried out a search.

You can hear the final decision in this comment from Judge Stephen Breyer during oral argument:

BREYER: Well, here, if we take your point of view, then it looks like the house isn’t the castle at all for the most trivial of things. I mean, it sounds silly when your house isn’t your castle for some terribly minor things.

As Judge Elena Kagan wrote in the notice, “We are not eager – rather the other way around – to print a new authorization slip to enter the house without a warrant. Police must determine if this is an emergency or if imminent danger to others is imminent before acting without a warrant.

EICHER: Then, a 6-3 victory for the right to property in the event of union recruitment on the farms.

California law directs farm businesses to allow union organizers to occupy their private property in an attempt to recruit workers into the union.

Two companies have challenged the settlement, claiming it violates Fifth Amendment property rights guarantees. It prohibits the government from taking property without “fair compensation” for the owners.

California has defended the law, saying it limits the time allowed for union organizers to three hours a day for 120 days a year and because of that it’s okay.

During oral argument, this did not seem to convince Chief Justice John Roberts, as you hear in this exchange with the lawyer defending the law:

ROBERTS: But what if there is more than one union that wants access? I mean, it’s not – it’s not at all unusual for unions to compete for representation. So, does each union have its own 120 days?

MONGAN: Yes, Your Honor.

These parameters are not enough to justify the state taking away what opinion has called “one of the most precious rights” of property: the right to exclude people.

REICHARD: The court won a narrow victory in a class action lawsuit against investment firm Goldman Sachs. The company’s shareholders alleged that it had committed securities fraud and cited general company statements such as “we have integrity” as a basis for prosecuting.

The high court reduced the number of people in the group who had not suffered any tangible harm, then referred to a lower court to determine whether stock prices were actually affected by general statements about the character of the company.

EICHER: The fourth opinion is another class action case that also cuts the number of people in the case.

Here, thousands of people have sought damages from a credit reporting company called Transunion. They sued after discovering that Transunion had reported that their names matched those on a government list of suspected terrorists.

But in a 5-4 decision, the majority said about 6,000 of those people in the class had not suffered any tangible injuries, so they had no standing to bring legal action. That left about 1,800 people certified as having suffered tangible harm and so they can proceed.

Chief Justice Roberts illustrated this point during oral argument. He envisioned a law that provides for damages for anyone driving less than a quarter of a mile from a drunk driver:

ROBERTS: What is the concrete injury in my hypothesis? You were at risk, but you didn’t know it, and by the time you found out, you weren’t.

In other words: no harm, no fault.

REICHARD: Fifth opinion: The court, in a 6-3 decision, gives more time for small refineries to be exempted from the requirements that more ethanol must be blended into their products.

The Clean Air Act required quotas for biofuels in gas products to reduce America’s dependence on foreign oil. The corn and petroleum industries have been stuck in a dispute over the disparate application of this law.

EICHER: Number six: A victory for Native Alaskan corporations that had asked for a portion of the CARES Act’s $ 8 billion in Covid relief. This is the initial stimulus package of 2020: the law on aid, relief and economic security against coronaviruses.

Indigenous tribes, mostly in the lower 48 states, argued that these for-profit corporations are not federally recognized as a tribe, so the money should not be distributed to them.

It boiled down to what the CARES Act means by the expression: “recognized governing bodies of Indian tribes”.

By a vote of 6 to 3 judges, the court ruled these for-profit organizations do are called tribes and are therefore entitled to a share of the money.

REICHARD: Opinion 7 out of 10 in total today: this one is a majority unanimous victory for the separation of powers. Lots of dissent and agreements.

The central question was whether the president was free to remove the director of the agency that oversees federal housing mortgage companies Freddie Mac and Fannie Mae for reasons other than the “for cause” restriction.

This is a big problem, because the constitution gives great latitude to the executive to remove agency heads for any reason, not just for good reason.

The court struck down that wording “only for good cause”.

And on the same day that notice was issued, President Biden sacked the director of the Federal Housing Finance Agency.

EICHER: I’ll ask David Bahnsen about the economic significance of this decision here in a few minutes.

Our next case, number eight, was an 8 to 1 free talk case.

Here, the court backed the teenager who posted a vulgar statement on social media directed at her school. She was angry that she wasn’t on the college cheerleading squad.

In response, the school suspended her from the junior varsity team for a year. Her family filed a complaint for violating their right to freedom of expression. The majority agreed, believing that off-campus speech is a matter of parental authority rather than the control of the school.

The decision is not, however, exhaustive. Bullying, harassment and threats are always subject to school authority for punishment.

REICHARD: Penultimate decision here, ninth, on whether the judges of the US Patent and Trademark Office are misnamed. The answer is yes in a 5-4 decision, because these judges are not appointed by the president and confirmed by the Senate as required by the appointment clause of the Constitution.

This case is now referred on the question of how to fix the procedures of the patent and trademark office.

EICHER: OK, here’s the tenth. You may have heard of this. A unanimous decision that made the headlines: the nine judges claim that the NCAA – the National Collegiate Athletic Association – violated antitrust laws by banning certain compensation for student-athletes.

They will still not be paid directly in cash; this view only applies to a small subset of NCAA rules regarding education spending. Things like free lessons, musical instruments, and laptops.

The judges brushed aside the NCAA’s argument that paying for these particular expenses is changing the nature of sport from amateur to professional and that this should be enough to protect the association from antitrust violations. You might hear this in Judge Brett Kavanaugh’s comment during oral argument:

KAVANAUGH: I’m assuming that antitrust laws shouldn’t be a cover for the exploitation of student-athletes, so that’s a concern, a primary concern here.

REICHARD: I will add that he took up this idea in his concurring opinion. It invites virtually more litigation to further dismantle the NCAA’s grip on college sports.

I will quote some:

“The NCAA business model would be downright illegal in almost every other industry in America. Not all restaurants in a region can unite to reduce cook wages based on the theory that “customers prefer” to eat food from poorly paid cooks… Movie studios cannot stand. hear to reduce the benefits of film crews to ignite a “spirit of amateurism” in Hollywood. Pricing work is pricing work … under ordinary antitrust law principles, it is not clear why college sports should be any different. The NCAA is not above the law.

EICHER: And this is the first case in this term in which the Supreme Court upheld the U.S. Court of Appeals for the 9th Circuit. The 9th has gained a solid reputation: between 2007 and last year the Supreme Court overturned the 9th Circuit 78 percent of the time and so far this percentage is much higher.

And this is the Legal File for this week!


WORLD Radio transcriptions are created within an emergency time frame. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative recording of WORLD Radio’s programming is the audio recording.


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