The transcript is up:

Petitioner

Right off the bat, AMK cut to the heart of the matter:

JUSTICE KENNEDY: But, counsel, for me, the case turns in large part on this: page 17 of the red brief. It says, “International law does not recognize corporate responsibility for the alleged offenses here.”
And the — one of the — the amicus brief for Chevron says, “No other nation in the world permits its court to exercise universal civil jurisdiction over  alleged extraterritorial human rights abuses to which the nation has no connection.”

And in reading through the briefs, I was trying to find the best authority you have to refute that proposition, or are you going to say that that proposition is irrelevant?

And—in a line sure to piss off Citizen-United-rabid liberals—AMK acknowledges for purposes of international law (but not the 1st Amendment?) that there is a difference between corporations and individuals:

JUSTICE KENNEDY: But in — in the area of international criminal law, which is just analogous, I recognize, there is a distinction made between individuals and corporations.

Alito, and the Chief asked whether this case could be brought in any other court:

CHIEF JUSTICE ROBERTS: If — if there is no other country where this suit could have been brought, regardless of what American domestic law provides, isn’t it a legitimate concern that allowing the suit itself contravenes international law?

…

JUSTICE ALITO: The first sentence in your brief and the statement of the case is really striking: “This case was filed by 12 Nigerian Plaintiffs who alleged that Respondents aided and abetted the human rights violations committed against them by the Abacha dictatorship in Nigeria between 1992 and 1995.” What does a case like that — what business does a case like that have in the courts of the United States?

MR. HOFFMAN: Well –

JUSTICE ALITO: There’s no connection to the  United States whatsoever. The Alien Tort Statute was enacted, it seems to be — there seems to be a consensus, to prevent the United States — to prevent international tension, to -and — does this — and this kind of a lawsuit only creates international tension.

And a shout-out to Judge Kavanaugh! Holla!

JUSTICE ALITO: Well, what did — how did Judge Kavanaugh interpret that on the D.C. Circuit?

And Alito goes all originalist!

JUSTICE ALITO: Do you really that think the first Congress wanted victims of the French Revolution to be able to sue in — in the court — to sue French defendants in the courts of the United States?

United States in Support of Petitioner

Likewise, the Chief seized on the difference between who undertakes the misconduct:

CHIEF JUSTICE ROBERTS: But under international law, it is critically pertinent who’s -who’s undertaking the conduct that is alleged to violate international norms. If an individual private group seizes a ship, it’s piracy. If the navy does it, it’s not. Governmental torture violates international norms. Private conduct does not.
So, why doesn’t the — why isn’t the same pertinence — your argument seems to be that all you need to do is find an event, torture, piracy, whatever, and then it’s up to the domestic law whether or not particular entities can be sued.

SGB goes off on his own and talks about a United State Supreme Court of the World and Pirates Incorporated (Disney may make that movie by merging Pirates of the Caribbean and Monsters Inc!).

JUSTICE BREYER: So — so, why — why then — you want to answer in your brief — and this question, I find impossibly difficult, maybe highly fact-dependent. There is no United States Supreme Court of the World. There is no way of getting unified law on the points of whether when we interpret a common law Federal — a system of Federal common law to decide whether a corporation can be defendant — a defendant in a certain kind of case. Every other country could do the same. And there’s no way of resolving it. All right?

So, I find that a difficult question. I don’t know why that’s in this case. I would have thought the question in this case is, can a private actor be sued for certain violations of — of substantive criminal law? The answer’s “yes.” Okay? Genocide, for example.
And then the question is — a corporation is a private actor. And is there any reason why, just like any other private actor, a corporation couldn’t be sued for genocide? And there the answer is I don’t know, but I’ll find out when the other side argues. You see?
(Laughter.)
JUSTICE BREYER: So, I — I think this is unnecessarily complicated. They made a — a categorical rule. They said never sue a corporation. I seem to think possibly of counterexamples. Pirates, Incorporated.

MR. KNEEDLER: Right. [Pronounced, Riiiighhhhht]

And here, like, Breyer, totally, i mean, like sounds like, totally, like a Valley girl. Right?

JUSTICE BREYER: You know? I mean — so -so, why isn’t that — why are we going into — I mean, you have good reason for doing it, and I want to hear why.

Totally.

 Respondent

Pirates, Inc. strikes back. I can definitely see Disney making this movie. Johnny Depp can play steven breyer, as a swashbuckling litigator, who leaps from ship to ship, bringing suit in any court that lets him in

JUSTICE BREYER: Yes, but that’s a different matter because you can have a principle that applies even though there isn’t a case. And the principle that here would apply is what I said, Pirates, Incorporated. Do you think in the 18th century if they’d brought Pirates, Incorporated, and we get all their gold, and Blackbeard gets up and he says, oh, it isn’t me; it’s the corporation — do you think that they would have
then said:
Oh, I see, it’s a corporation.
Good-bye.
Go home.
(Laughter.)
MS. SULLIVAN: Justice Breyer, yes, the corporation would not be liable.

And, a knock-out-drag-down fight between two former law school deans–who both were on the SCOTUS short list–Kagan and Sullivan. Ding! Ding! Ding! Fight!

 JUSTICE KAGAN: But, Ms. Sullivan, I think that that’s mostly because all of these are written to prohibit certain acts, and they don’t talk about the actors. So, if I could, you know, draw an analogy, it’s as if somebody came and said, you know, this — this norm of international law does not apply to Norwegians. And you — well, there’s no case about Norwegians. And it doesn’t specifically say “Norwegians.” But, of course, it applies to Norwegians because it prevents everybody from committing a certain kind of act.

MS. SULLIVAN: But, Justice Kagan, international law does speak to who may be liable, which you correctly identified as a substantive question, not a question of enforcement. And international law holds corporations liable for some international law violations. Look to the convention on the suppression of the financing of terrorism, which speaks about legal entities, or the convention on bribery of public officials, which speaks about legal persons.

Round 2:

JUSTICE KAGAN: Miss Sullivan, take an example that has all the extraterritoriality aspects of this case taken away from it. Let’s assume that the French ambassador is assaulted or attacked in some way in the United States, and that that attack is by a corporate agent. Would we say that the corporation there cannot be sued under the Alien Tort Statute?
MS. SULLIVAN: Yes, Your Honor. You would say that because there is no assaulting ambassador norm that applies to corporations.
I just want to go back and -JUSTICE
KAGAN: Could you explain to me -we would have to sue the person individually?
MS. SULLIVAN: Exactly. Exactly.
JUSTICE KAGAN: What — so this goes back to Justice Breyer’s question. Where do you find that in international law? Where — where does it say, when the French ambassador is sued in the United States by a corporate agent, we can’t sue the corporation?
MS. SULLIVAN: The burden rests on the Petitioners to show that the norm is established by international law; not on us to show that corporate liability is any

Round 3 (and an audio clip that will likely find its way onto MSNBC):

JUSTICE KAGAN: Miss Sullivan that would be true against an individual as well. The ATS is just a unique statute. It’s unique against individuals, and it’s unique against corporations. That doesn’t answer the question that you’re here to address which is whether corporations are meaningfully different from individuals.
MS. SULLIVAN: They are meaningfully different from individuals under international law which is the crucial choice of law question that you need to answer here. The crucial question that is at the threshold is which law determines whether corporations are liable.

Round 4 is a draw:

JUSTICE KAGAN: The question of who has an obligation is a substantive question.
MS. SULLIVAN: Respectfully, Justice Kagan, we disagree. The question of who may be sued is fundamentally part of the question of whether there has been a tort committed in violation of the law of nations. It would read the verb “committed” out of the statute.
If you just said find a violation of the law of nations anywhere and then apply it to whoever you want.
JUSTICE KAGAN: To give you an example, the tort in violation of the law nations has been committed. It has been committed by the corporate agent. And the question then is, can one hold the corporation responsible for that tort. And that seems to be a question of enforcement, of remedy; not of substantive international law.
MS. SULLIVAN: Justice Kagan, we respectfully disagree. That is a question of substantive law. Think about a domestic analogy. Look to the restatement of conflicts. You would ask whether — you would not look to foreign law to determine a question of respondeat superior or contribution or indemnity. You would not look to foreign law to determine whether, in the words of the restatement, one person is liable for the tort of the other.

You would look to the law of the place of misconduct or the place of where the corporation is headquartered. Foreign law determines in this case whether you had could have civil remedies rather than criminal. We concede that the ATS allows a civil remedy where the world would impose only criminal liability.
That’s because civil liability versus criminal liability, that’s a matter of remedy. So would be the amount of damages. So would be the choice of compensatory or punitive damages. Those are matters of remedy for domestic law to decide.

 

So what’s the deal with the Supremacy Clause? Well, only four Justices in dissent were willing to say anything about it, and whether it creates a private cause of action. Here is my analysis of Douglas v. Independent Living Center of Southern Cal., Inc.

The majority, by Breyer, for Kennedy, GInsburg, Sotomayor, and Kagan. The dissent by the Chief, joined by Scalia, Thomas, and Alito.

As a threshold matter, the majority and dissent don’t seem to even agree about what the case is about!

Breyer said:

We granted certiorari in these cases to decide whether Medicaid providers and recipients may maintain a cause of action under the Supremacy Clause to enforce a federal Medicaid law—a federal law that, in their view, conflicts with (and pre-empts) state Medicaid statutes that reduce payments to providers.

The Chief disagreed, noting:

During briefing and argument in this case, the parties have debated broad questions, such as whether and when constitutional provisions as a general matter are directly enforceable. It is not necessary to consider these larger issues. It is not even necessary to decide whether the Supremacy Clause can ever provide a private cause of action. The question presented in the certiorari petitions is narrow: “Whether Medicaid recipients and providers may maintain a cause of action under the Supremacy Clause to enforce [§30(A)] by asserting that the provision preempts a state law reducing reimbursement rates.” To decide this case, it is enough to conclude that the Suprem- acy Clause does not provide a cause of action to enforce the requirements of §30(A) when Congress, in establishing those requirements, elected not to provide such a cause of action in the statute itself.

In any event, both groups seem to concede that the facts have changed:

Since we granted certiorari, how- ever, the relevant circumstances have changed. The fed- eral agency in charge of administering Medicaid, the Cen- ters for Medicare & Medicaid Services (CMS), has now approved the state statutes as consistent with the federal law. In light of the changed circumstances, we believe that the question before us now is whether, once the agen- cy has approved the state statutes, groups of Medicaid providers and beneficiaries may still maintain a Suprem- acy Clause action asserting that the state statutes are inconsistent with the federal Medicaid law. For the rea- sons set forth below, we vacate the Ninth Circuit’s judg- ments and remand these cases for proceedings consistent with this opinion.

Whenever a majority opinion on a big case is 8 pages, you know it’s a duck!

So here’s how Breyer characterizes the 9th Circuit’s seven opinions:

The decisions ultimately affirmed or ordered preliminary injunctions that prevented the State from im- plementing its statutes. They (1) held that the Medi- caid providers and beneficiaries could directly bring an action based on the Supremacy Clause; (2) essentially accepted the claim that the State had not demonstrated that its Medicaid plan, as amended, would provide suffi- cient services; (3) held that the amendments consequently conflicted with the statutory provision we have quoted; and (4) held that, given the Constitution’s Supremacy Clause, the federal statute must prevail. That is to say, the federal statute pre-empted the State’s new laws.

But the posture changed after cert was granted.

The cases were in this posture when we granted certiorari to decide whether respondents could mount a Supremacy Clause challenge to the state statutes and obtain a court injunc- tion preventing California from implementing its statutes.

About a month after we heard oral argument, the feder- al agency reversed course and approved several of Califor- nia’s statutory amendments to its plan

So why wasn’t this case DIG’D?

Anyway, Breyer seems to think an APA challenge is better than this Supremacy Clause challenge:

Nor have the parties suggested reasons why, once the agency has taken final action, a court should reach a different result in a case like this one, depending upon whether the case proceeds in a Supremacy Clause action rather than under the APA for review of an agency deci- sion. Indeed, to permit a difference in result here would subject the States to conflicting interpretations of federal law by several different courts (and the agency), thereby threatening to defeat the uniformity that Congress in- tended by centralizing administration of the federal pro- gram in the agency and to make superfluous or to under- mine traditional APA review.

…

If the two kinds of actions should reach the same result, the Supremacy Clause challenge is at best redundant. And to permit the continuation of the action in that form would seem to be inefficient, for the agency is not a participant in the pend- ing litigation below, litigation that will decide whether the agency-approved state rates violate the federal statute.

It is so ordered.

And here’s the end. Total gobbledygook, even for Breyer:

In the present posture of these cases, we do not address whether the Ninth Circuit properly recognized a Suprem- acy Clause action to enforce this federal statute before the agency took final action. To decide whether these cases may proceed directly under the Supremacy Clause now that the agency has acted, it will be necessary to take account, in light of the proceedings that have already taken place, of at least the matters we have set forth above. It must be recognized, furthermore, that the par- ties have not fully argued this question. Thus, it may be that not all of the considerations that may bear upon the proper resolution of the issue have been presented in the briefs to this Court or in the arguments addressed to and considered by the Court of Appeals. Given the complexity of these cases, rather than ordering reargument, we va- cate the Ninth Circuit’s judgments and remand the cases, thereby permitting the parties to argue the matter before that Circuit in the first instance.

I have never read a Supreme Court opinion that said less. Breyer should have added an LOLCAT or something to the end.

Robert’s dissent has some good stuff on the Supremacy Clause:

To decide this case, it is enough to conclude that the Suprem- acy Clause does not provide a cause of action to enforce the requirements of §30(A) when Congress, in establishing those requirements, elected not to provide such a cause of action in the statute itself.

The Supremacy Clause operates differently than other constitutional provisions. For example, if Congress says in a law that certain provisions do not give rise to a taking without just compensation, that obviously does not resolve a claim under the Takings Clause that they do. The Su- premacy Clause, on the other hand, is “not a source of any federal rights.” Chapman v. Houston Welfare Rights Organization, 441 U. S. 600, 613 (1979); accord, Dennis v. Higgins, 498 U. S. 439, 450 (1991) (contrasting, in this regard, the Supremacy Clause and the Commerce Clause). The purpose of the Supremacy Clause is instead to ensure  that, in a conflict with state law, whatever Congress says goes. See The Federalist, No. 33, p. 205 (C. Rossiter ed. 1961) (A. Hamilton) (the Supremacy Clause “only declares a truth which flows immediately and necessarily from the institution of a federal government”).

Thus, if Congress does not intend for a statute to supply a cause of action for its enforcement, it makes no sense to claim that the Supremacy Clause itself must provide one. Saying that there is a private right of action under the Supremacy Clause would substantively change the federal rule established by Congress in the Medicaid Act. That is not a proper role for the Supremacy Clause, which simply ensures that the rule established by Congress controls.

Indeed, to say that there is a federal statutory right enforceable under the Supremacy Clause, when there is no such right under the pertinent statute itself, would effect a complete end-run around this Court’s implied right of action and 42 U. S. C. §1983 jurisprudence. We have em- phasized that “where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under §1983 or under an implied right of action.” Gonzaga Univ. v. Doe, 536 U. S. 273, 286 (2002). This body of law would serve no purpose if a plaintiff could overcome the absence of a statutory right of action simply by invoking a right of action under the Supremacy Clause to the exact same effect.

The breakdown in this case is very odd. All nine justices agree that the search was unconstitutional.

Scalia, Roberts, Kennedy, Thomas, and Sotomayor (kinda) rely on Nino’s originalist common-law trespass view of the Fourth Amendment and need not reach Harlan’s reasonable expectation of privacy test. The opinion is short and sweet–12 pages.

Sotomayor concurs, by herself, writing that since there was a physical intrusion, she joins the narrower basis. Soto could have totally split a 4-1-4. Curious.

Alito concurs in judgment, joined by Ginsburg, Breyer, and Kagan, in a distinctly unoriginalist manner, focusing on whether the reasonable expectation of privacy was violated  by the long-term monitoring of the vehicle.

(I’ll have more shortly).

Scalia majority opinion

Scalia goes all-Olmstead on the Fourth Amendment, and demands a physical search.

It is important to be clear about what occurred in thiscase: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have beenconsidered a “search” within the meaning of the FourthAmendment when it was adopted. Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765), is a “case we have described as a ‘monument of English freedom’ ‘undoubtedly familiar’to ‘every American statesman’ at the time the Constitutionwas adopted, and considered to be ‘the true and ultimate expression of constitutional law’” with regard to searchand seizure. . . .

The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referredsimply to “the right of the people to be secure against unreasonable searches and seizures”; the phrase “in their persons, houses, papers, and effects” would have been superfluous

And lots of cites to Kyllo:

Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century. Kyllo v. United States, 533 U. S. 27, 31 (2001); Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 816 (2004). Thus, in Olmstead v. United States, 277 U. S. 438 (1928), we held that wiretaps attached to telephonewires on the public streets did not constitute a FourthAmendment search because “[t]here was no entry of the houses or offices of the defendants,” id., at 464.

But then, drats, Katz!

Our later cases, of course, have deviated from that exclusively property-based approach. In Katz v. United States, 389 U. S. 347, 351 (1967), we said that “the Fourth Amendment protects people, not places,” and found a violation in attachment of an eavesdropping device to a public telephone booth. Our later cases have applied theanalysis of Justice Harlan’s concurrence in that case,which said that a violation occurs when government officers violate a person’s “reasonable expectation of privacy,” id., at 360.

But Scalia effectively says Katz need not apply, relying on his baby Kyllo, which is not the end-all-be-all of the Fourth Amendment:

But we need not address the Government’s contentions, because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo, supra, at 34. As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates.3 Katz did not repudiate that understanding. Less than two years later the Court upheld defendants’ contention that the Government could not introduce against them conversations between other people obtained by warrantless placement of electronicsurveillance devices in their homes. The opinion rejectedthe dissent’s contention that there was no Fourth Amendment violation “unless the conversational privacy ofthe homeowner himself is invaded.”4 Alderman v. United States, 394 U. S. 165, 176 (1969). “[W]e [do not] believethat Katz, by holding that the Fourth Amendment protectspersons and their private conversations, was intended to withdraw any of the protection which the Amendment extends to the home . . . .” Id., at 180.

Nino replies to Alito in a footnote to try to save originalism:

JUSTICE ALITO’s concurrence (hereinafter concurrence) doubts the wisdom of our approach because “it is almost impossible to think oflate-18th-century situations that are analogous to what took place inthis case.” Post, at 3 (opinion concurring in judgment). But in fact it posits a situation that is not far afield—a constable’s concealing himself in the target’s coach in order to track its movements. Ibid. There is no doubt that the information gained by that trespassory activity would bethe product of an unlawful search—whether that information consisted of the conversations occurring in the coach, or of the destinations to which the coach traveled. In any case, it is quite irrelevant whether there was an 18th-centuryanalog. Whatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have constituted a “search” within the original meaning of the Fourth Amendment. [JB: Original expected application originalism or something like that] Where, as here, the Government obtains information byphysically intruding on a constitutionally protected area, such a search has undoubtedly occurred.

Alito has a funny rejoinder to this silly constable example:

The Court suggests that something like this might have occurred in 1791, but this would have required either a gigantic coach, a very tinyconstable, or both—not to mention a constable with incredible fortitude and patience.

And this:

The concurrence begins by accusing us of applying“18th-century tort law.” Post, at 1. That is a distortion. What we apply is an 18th-century guarantee against un- reasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted. The concurrence does not share that belief. It would apply exclusively Katz’s reasonable-expectationof-privacy test, even when that eliminates rights thatpreviously existed.

And Scalia stresses that Katz could remain viable for cases involving *just* the electronic transmisison of signals (this screams of something added by another Justice, as it departs so heavily from what Nino has written elsewhere):

For unlike the concurrence, which would make Katz the exclusive test, we do not make trespass the exclusive test. Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.

Here Scalia suggests that monitoring a car 24/7 with humans would be constitutional, but the same approach through electronic means would be unconstitutional.

Thus, even assuming that the concurrence is correct tosay that “[t]raditional surveillance” of Jones for a 4-weekperiod “would have required a large team of agents, multiple vehicles, and perhaps aerial assistance,” post, at 12, our cases suggest that such visual observation is constitutionally permissible. It may be that achieving the sameresult through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy,but the present case does not require us to answer that question.

Scalia has another interesting footnote in response to Alito exploring the interplay between a search and a trespass:

5The concurrence notes that post-Katz we have explained that “ ‘an actual trespass is neither necessary nor sufficient to establish a constitutional violation.’ ” Post, at 6 (quoting United States v. Karo, 468 U. S. 705, 713 (1984)). That is undoubtedly true, and undoubtedly irrelevant. Karo was considering whether a seizure occurred, and as the concurrence explains, a seizure of property occurs, not when there is a trespass, but “when there is some meaningful interference with an individual’s possessory interests in that property.” Post, at 2 (internal quotation marks omitted). Likewise with a search. Trespass alonedoes not qualify, but there must be conjoined with that what was present here: an attempt to find something or to obtain information. Related to this, and similarly irrelevant, is the concurrence’s point that, if analyzed separately, neither the installation of the device nor its use would constitute a Fourth Amendment search. See ibid. Of course not. A trespass on “houses” or “effects,” or a Katz invasion of privacy, is not alone a search unless it is done to obtain information;and the obtaining of information is not alone a search unless it isachieved by such a trespass or invasion of privacy.

Scalia reconciles this opinion with Knotts:

The first case, Knotts, upheld against Fourth Amendment challenge the use of a“beeper” that had been placed in a container of chloroform,allowing law enforcement to monitor the location of thecontainer. 460 U. S., at 278. We said that there had been no infringement of Knotts’ reasonable expectation of privacy since the information obtained—the location of the automobile carrying the container on public roads, andthe location of the off-loaded container in open fields nearKnotts’ cabin—had been voluntarily conveyed to the public.
6 Id., at 281–282. But as we have discussed, the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. The holding in Knotts addressed only the former, since thelatter was not at issue. The beeper had been placed inthe container before it came into Knotts’ possession, withthe consent of the then-owner. 460 U. S., at 278. Knotts did not challenge that installation, and we specifically de- clined to consider its effect on the Fourth Amendment analysis. Id., at 279, n. Knotts would be relevant, perhaps, if the Government were making the argument thatwhat would otherwise be an unconstitutional search is not such where it produces only public information. The Government does not make that argument, and we knowof no case that would support it.

Oh boy that is a narrow distinction.

In any event, resolving this case based on trespass obviates the need to drawn lines. When is a search too long to be unreasonable?

And answering it affirmatively leads us needlessly into additional thorny problems. The concurrence posits that “relatively short-term monitoring of a person’s movements on public streets” is okay, but that “the use of longer term GPS monitoring in investigations of most offenses” is no good. Post, at 13 (emphasis added). That introduces yetanother novelty into our jurisprudence. There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remainsunexplained why a 4-week investigation is “surely” toolong and why a drug-trafficking conspiracy involving sub- stantial amounts of cash and narcotics is not an “extra- ordinary offens[e]” which may permit longer observation. See post, at 13–14. What of a 2-day monitoring of a suspected purveyor of stolen electronics? Or of a 6-month monitoring of a suspected terrorist? We may have tograpple with these “vexing problems” in some future case where a classic trespassory search is not involved andresort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.

Sotomayor Concurring

Sotomayor stresses that a trespass on property is not the only way to violate the Fourth Amendment:

Of course, the Fourth Amendment is not concerned onlywith trespassory intrusions on property. See, e.g., Kyllo v. United States, 533 U. S. 27, 31–33 (2001). Rather, even in the absence of a trespass, “a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Id., at 33; see also Smith v. Maryland, 442 U. S. 735, 740–741 (1979); Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring). In Katz, this Court enlarged itsthen-prevailing focus on property rights by announcing that the reach of the Fourth Amendment does not “turn upon the presence or absence of a physical intrusion.” Id., at 353. As the majority’s opinion makes clear, however, Katz’s reasonable-expectation-of-privacy test augmented,but did not displace or diminish, the common-law trespassory test that preceded it.

Soto strikes back at Alito’s rejection of the trespass-test.

JUSTICE ALITO’s approach, which discounts altogether the constitutional relevance of the Government’s physical intrusion on Jones’ Jeep, erodes that longstanding protection for privacy expectations inherent in items of property that people possess or control. See post, at 5–7 (opinion concurring in judgment). By contrast, the trespassory test applied inthe majority’s opinion reflects an irreducible constitutionalminimum: When the Government physically invadespersonal property to gather information, a search occurs.The reaffirmation of that principle suffices to decide this case.

Soto also addresses Alito’s point that many searches can occur in the absence of a physical search, noting the shortfalls of what seems to be the majority’s compromise-position:

Nonetheless, as JUSTICE ALITO notes, physical intrusionis now unnecessary to many forms of surveillance. Post, at 9–12. With increasing regularity, the Government will becapable of duplicating the monitoring undertaken in thiscase by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones. See United States v. Pineda-Moreno, 617 F. 3d 1120, 1125 (CA9 2010) (Kozinski, C. J., dissenting from denial of rehearing enbanc). In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasionon property, the majority opinion’s trespassory test mayprovide little guidance. But “[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.” Ante, at 11. As JUSTICE ALITO incisively observes, the same technologicaladvances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations. Post, at 10–11. Under that rubric, I agree with JUSTICE ALITO that, at the very least, “longer term GPS monitoring in inves- tigations of most offenses impinges on expectations of privacy.” Post, at 13.

Sotomayor culls from circuit opinion to focus on the threats of unbounded-GPS-tracking.

Awareness that the Government may be watching chillsassociational and expressive freedoms. And the Government’s unrestrained power to assemble data that revealprivate aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a waythat is inimical to democratic society.” United States v. Cuevas-Perez, 640 F. 3d 272, 285 (CA7 2011) (Flaum, J., concurring).

And here she puts forth her own test!

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not regard as dispositivethe fact that the Government might obtain the fruits of GPS monitoring through lawful conventional surveillancetechniques. See Kyllo, 533 U. S., at 35, n. 2; ante, at 11 (leaving open the possibility that duplicating traditional surveillance “through electronic means, without an accompanying trespass, is an unconstitutional invasion ofprivacy”). I would also consider the appropriateness ofentrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable tomisuse, especially in light of the Fourth Amendment’s goalto curb arbitrary exercises of police power to and prevent“a too permeating police surveillance,” United States v. Di Re, 332 U. S. 581, 595 (1948)

Justice Harlan in Katz, it is not.

The admonition to reconsider Smith is apt though.

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a greatdeal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellu- lar providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medi- cations they purchase to online retailers. Perhaps, asJUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to acceptthis “diminution of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protectedstatus only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

Alito Concurring in Judgment

Justice Alito takes a distinctly un-originalist view of this case, focusing on the “current” case law rather than what Scalia views as the original meaning of the Constitution.

This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a21st-century surveillance technique, the use of a Global Positioning System (GPS) device to monitor a vehicle’s movements for an extended period of time. Ironically, the Court has chosen to decide this case based on 18th-century tort law. By attaching a small GPS device1 to the underside of the vehicle that respondent drove, the law enforcement officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespassto chattels.2 And for this reason, the Court concludes, the installation and use of the GPS device constituted a search. Ante, at 3–4.

This holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.
I would analyze the question presented in this case byasking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of themovements of the vehicle he drove.

This really reads more like a dissent (ignoring that both agree the search was unconstitutional).

Alito disagrees with the Court’s grounding of the trespass-theory in the case law (this is probably right) and proceeds to identify other issues:

In sum, the majority is hard pressed to find support in post-Katz cases for its trespass-based theory. Disharmony with a substantial body of existing case lawis only one of the problems with the Court’s approach in this case. I will briefly note four others. First, the Court’s reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most wouldview as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation). . . . By contrast, if longterm monitoring can be accomplished without committinga technical trespass—suppose, for example, that the Federal Government required or persuaded auto manufacturers to include a GPS tracking device in every car—the Court’s theory would provide no protection.

Yes, this is indeed the 800-pound GPS-gorilla the majority largely glosses over.

Fourth, the Court’s reliance on the law of trespass will present particularly vexing problems in cases involving surveillance that is carried out by making electronic, as opposed to physical, contact with the item to be tracked.For example, suppose that the officers in the present case had followed respondent by surreptitiously activating astolen vehicle detection system that came with the carwhen it was purchased. Would the sending of a radiosignal to activate this system constitute a trespass to chattels?

Alito also discounts the Katz test, in light of the way that evolving technologies can change privacy expectations (similar to Sotomayor’s point)

The Katz expectation-of-privacy test avoids the problems and complications noted above, but it is not without itsown difficulties. It involves a degree of circularity, see Kyllo, 533 U. S., at 34, and judges are apt to confuse their own expectations of privacy with those of the hypothetical reasonable person to which the Katz test looks. See Minnesota v. Carter, 525 U. S. 83, 97 (1998) (SCALIA, J., concurring). In addition, the Katz test rests on the assumption that this hypothetical reasonable person has awell-developed and stable set of privacy expectations. But technology can change those expectations. Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technologymay provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails,they may eventually reconcile themselves to this development as inevitable On the other hand, concern about new intrusions on privacy may spur the enactment of legislation to protect against these intrusions. This is what ultimately happened with respect to wiretapping. After Katz, Congress did not leave it to the courts to develop a body of Fourth Amendment case law governing that complex subject.Instead, Congress promptly enacted a comprehensivestatute, see 18 U. S. C. §§2510–2522 (2006 ed. and Supp.IV), and since that time, the regulation of wiretapping hasbeen governed primarily by statute and not by case law.7 In an ironic sense, although Katz overruled Olmstead, Chief Justice Taft’s suggestion in the latter case that theregulation of wiretapping was a matter better left forCongress, see 277 U. S., at 465–466, has been borne out.

In other words, let Congress–and not the courts–deal with this evolving technologies.

And this is the passage that will be cited ad infinitum in law reviews

Recent years have seen the emergence of many newdevices that permit the monitoring of a person’s movements. In some locales, closed-circuit television video monitoring is becoming ubiquitous. On toll roads, automatic toll collection systems create a precise record of the movements of motorists who choose to make use of that convenience. Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car’s location at any time so that roadsideassistance may be provided if needed and the car may be found if it is stolen. Perhaps most significant, cell phones and other wirelessdevices now permit wireless carriers to track and recordthe location of users—and as of June 2011, it has been reported, there were more than 322 million wireless devices in use in the United States.8 For older phones, the accuracy of the location information depends on the density of the tower network, but new “smart phones,” which are equipped with a GPS device, permit more precise tracking. For example, when a user activates the GPS onsuch a phone, a provider is able to monitor the phone’s location and speed of movement and can then report back real-time traffic conditions after combining (“crowdsourcing”) the speed of all such phones on any particular road.9 Similarly, phone-location-tracking services are offered as “social” tools, allowing consumers to find (or to avoid)others who enroll in these services. The availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements.

Alito is right-on to note that in the pre-computer age, the biggest constraint on surveillance was cost. With technology, those costs are no longer a factor:

In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken. The surveillance at issue in this case—constant monitoring of the location of a vehicle for four weeks—would have required a large team of agents, multiplevehicles, and perhaps aerial assistance.10 Only an investigation of unusual importance could have justified such an expenditure of law enforcement resources. Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap. In circumstances involving dramatic technological change, the best solutionto privacy concerns may be legislative. See, e.g., Kerr, 102 Mich. L. Rev., at 805–806. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way. . . .

But the use of longer term GPS monitoring in investigations ofmost offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that lawenforcement agents and others would not—and indeed, inthe main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surelycrossed before the 4-week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendmentsearch, the police may always seek a warrant.11 We also need not consider whether prolonged GPS monitoring inthe context of investigations involving extraordinaryoffenses would similarly intrude on a constitutionallyprotected sphere of privacy. In such cases, long-termtracking might have been mounted using previously available techniques.

Oh this was somewhat unsatisfying. If only Alito’s opinion became the majority. Sotomayor’s vote is so, so odd.

But the use of longer term GPS monitoring in investigations ofmost offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that lawenforcement agents and others would not—and indeed, inthe main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surelycrossed before the 4-week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveil

In Mims v. Arrow Financial Services, the Court unanimously, per RBG, holds that the Telephone Consumer Protection Act of 1991’s “permissive grant of jurisdiction to state courts does not deprive the U. S. district courts of federal-question jurisdiction over private TCPA suits.”

Jurisdiction over state-initiated TCPA suits, Congress provided, lies exclusively in the U. S. district courts. Congress also provided for civil actions byprivate parties seeking redress for violations of the TCPA or of the Commission’s implementing regulations.Petitioner Marcus D. Mims, complaining of multiple violations of the Act by respondent Arrow Financial Services, LLC (Arrow), a debt-collection agency, commencedan action for damages against Arrow in the U. S. DistrictCourt for the Southern District of Florida. Mims invoked the court’s “federal question” jurisdiction, i.e., its authorityto adjudicate claims “arising under the . . . laws . . . of the United States,” 28 U. S. C. §1331. The District Court, affirmed by the U. S. Court of Appeals for the EleventhCircuit, dismissed Mims’s complaint for want of subjectmatter jurisdiction. Both courts relied on Congress’ specification, in the TCPA, that a private person may seekredress for violations of the Act (or of the Commission’sregulations thereunder) “in an appropriate court of [a] State,” “if [such an action is] otherwise permitted by the laws or rules of court of [that] State.” 47 U. S. C. §§227(b)(3), (c)(5).

The question presented is whether Congress’ provision for private actions to enforce the TCPA renders statecourts the exclusive arbiters of such actions. We have long recognized that “[a] suit arises under the law that createsthe cause of action.” American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 260 (1916). Beyond doubt, theTCPA is a federal law that both creates the claim Mims has brought and supplies the substantive rules that willgovern the case. We find no convincing reason to read into the TCPA’s permissive grant of jurisdiction to state courtsany barrier to the U. S. district courts’ exercise of the general federal-question jurisdiction they have possessedsince 1875. See Act of Mar. 3, 1875, §1, 18 Stat. 470; 13D C. Wright, A. Miller, E. Cooper, & R. Freer, Federal Practice and Procedure §3561, p. 163 (3d ed. 2008) (hereinafter Wright & Miller). We hold, therefore, that federal and state courts have concurrent jurisdiction over private suits arising under the TCPA.

(more to come later when I get a moment)

Update: And as promised, more.

47 U.S.C. 227(b)(3) provides., in part, that:

“A person or entity may, if otherwise permitted bythe laws or rules of court of a State, bring in an appropriate court of that State…

The 11th Circuit found that a federal district court lacks subject matter jurisdiction, as this statute grants exclusive jurisdiction to the state courts. This seems pretty clear from the text, but the Court disagreed.

The District Court held that it lacked subject-matterjurisdiction over Mims’s TCPA claim. Under Eleventh Circuit precedent, the District Court explained, federalquestion jurisdiction under 28 U. S. C. §1331 was unavailable “because Congress vested jurisdiction over [privateactions under] the TCPA exclusively in state courts.” Civ. No. 09–22347 (SD Fla., Apr. 1, 2010), App. to Pet. for Cert. 4a–5a (citing Nicholson v. Hooters of Augusta, Inc., 136 F. 3d 1287 (CA11 1998)). Adhering to Circuit precedent,the U. S. Court of Appeals for the Eleventh Circuit affirmed. 421 Fed. Appx. 920, 921 (2011) (quoting Nicholson, 136 F. 3d, at 1287–1288 (“Congress granted state courts exclusive jurisdiction over private actions under the[TCPA].”)).

I didn’t realize that at one point Congress gave federal courts general subject matter jurisdiction.

Congress granted federal courts general federalquestion jurisdiction in 1875. See Act of Mar. 3, 1875, §1, 18 Stat. 470.6

6Congress had previously granted general federal-question jurisdiction to federal courts, but the grant was short lived. See Steffel v. Thompson, 415 U. S. 452, 464, n. 14 (1974) (describing Midnight JudgesAct of 1801, §11, 2 Stat. 92, repealed by Act of Mar. 8, 1802, §1, 2 Stat. 132).

And a brief recitation of whether TCPA creates a federal cause of action, and if it “arises under” 1331 with stops at American ell Works, Merrell Down, and Grable:

Because federal law creates the right of action andprovides the rules of decision, Mims’s TCPA claim, in 28 U. S. C. §1331’s words, plainly “aris[es] under” the “laws. . . of the United States.” As already noted, supra, at 2, “[a] suit arises under the law that creates the cause of action.” American Well Works, 241 U. S., at 260. Al-though courts have described this formulation as “moreuseful for inclusion than for . . . exclusion,” Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804, 809, n. 5 (1986) (quoting T. B. Harms Co. v. Eliscu, 339 F. 2d 823, 827 (CA2 1964)), there is no serious debate that a federally created claim for relief is generally a “sufficient condition for federal-question jurisdiction.” Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545
U. S. 308, 317 (2005).

…

9Even when a right of action is created by state law, if the claim requires resolution of significant issues of federal law, the case may ariseunder federal law for 28 U. S. C. §1331 purposes. See Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545 U. S. 308, 312 (2005).

And the Court tries to explain away an outlier in its jurisprudence by citing Hart & Wechsler! Go figure.

For a rare exception to the rule that a federal cause of action suffices to ground federal-question jurisdiction, see Shoshone Mining Co. v. Rutter, 177 U. S. 505 (1900), discussed in R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System, 784–785 (6th ed. 2009). In Shoshone Mining, we held that a suit for a federal mining patent did not arise under federal lawfor jurisdictional purposes because “the right of possession” in controversy could be determined by “local rules or customs, or state statutes,” 177 U. S., at 509, or “may present simply a question of fact,” id., at 510. Here, by contrast, the TCPA not only creates the claim for relief anddesignates the remedy; critically, the Act and regulations thereunder supply the governing substantive law.

I remember just this discussion from my H&W, and when I taught the topic, I explained that it was doctrinally incoherent.  I guess now H&W is right, and SCOTUS concedes. I’m glad some fed courts junkie law clerk stuck that in there.

Plus Richard Fallon, who objects to filing scholar’s briefs, gets cited by SCOTUS without even trying!

Next, the Court notes that there is a presumption of concurrent jurisdiction.

In cases “arising under” federal law,we note, there is a “deeply rooted presumption in favor of concurrent state court jurisdiction,” rebuttable if “Congress affirmatively ousts the state courts of jurisdictionover a particular federal claim.” Tafflin v. Levitt, 493
U. S. 455, 458–459 (1990). E.g., 28 U. S. C. §1333 (“The district courts shall have original jurisdiction, exclusive ofthe courts of the States, of: (1) Any civil case of admiraltyor maritime jurisdiction . . . .”). The presumption of concurrent state-court jurisdiction, we have recognized, canbe overcome “by an explicit statutory directive, by unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interests.” Gulf Offshore Co. v. Mobil Oil Corp., 453
U. S. 473, 478 (1981).

But is there a converse presumption in favor of state-court jurisdiction only where Congress uses clear language? Nope.

Arrow readily acknowledges the presumption of con- current state-court jurisdiction, but maintains that 28 U. S. C. §1331 creates no converse presumption in favor of federal-court jurisdiction. Instead, Arrow urges, theTCPA, a later, more specific statute, displaces §1331, an earlier, more general prescription. See Tr. of Oral Arg. 28–29; Brief for Respondent 31.

Section 1331, our decisions indicate, is not swept awayso easily. As stated earlier, see supra, at 8, when federal law creates a private right of action and furnishes the substantive rules of decision, the claim arises under federal law, and district courts possess federal-question jurisdiction under §1331.9 That principle endures unlessCongress divests federal courts of their §1331 adjudicatory authority. See, e.g., Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U. S. 635, 642 (2002) (Nothing in 47 U. S. C. §252(e)(6) “divest[s] the district courts of their authority under 28 U. S. C. §1331 to review the [state agency’s] order for compliance with federal law.”); K mart Corp. v. Cartier, Inc., 485 U. S. 176, 182–183 (1988) (“TheDistrict Court would be divested of [§1331] jurisdiction . . . if this action fell within one of several specific grants of exclusive jurisdiction to the Court of International Trade[under 28 U. S. C. §1581(a) or §1581(i)(3)].”).

And this bit, which alludes to divestment of state court jurisdiction from an opinion by Circuit Judge Alito, in dissent.

“[D]ivestment of district court jurisdiction” should be found no more readily than “divestmen[t] of state court jurisdiction,” given “the longstanding and explicit grant of federal question jurisdiction in 28 U. S. C. §1331.” ErieNet, 156 F. 3d, at 523 (Alito, J., dissenting); see Gonell, Note, Statutory Interpretation of Federal Jurisdictional Statutes: Jurisdiction of the Private Right of Action under the TCPA, 66 Ford. L. Rev. 1895, 1929–1930 (1998).Accordingly, the District Court retains §1331 jurisdiction over Mims’s complaint unless the TCPA, expressly or byfair implication, excludes federal-court adjudication. See Verizon Md., 535 U. S., at 644; Gonell, supra, at 1929 (Jurisdiction over private TCPA actions “is proper under §1331 unless Congress enacted a partial repeal of §1331 in the TCPA.”).

It’s nice when a sitting Justice can join an opinion that cites a dissent he wrote. So much for those other two judges. Here is the bit form Alito’s dissent in ErieNet, Inc. v. Velocity Net, Inc:

 Indeed, I think that the Supreme Court’s decision in Tafflin v. Levitt, 493 U.S. 455, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990), clearly shows that the majority has erred. I therefore respectfully dissent.

In Tafflin, the Supreme Court interpreted the following provision from the federal RICO statute:

Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court.

18 U.S.C. § 1964 (emphasis added). The Court found that this language was insufficient to divest state courts of concurrent jurisdiction over private RICO actions, explaining:

[The statute’s] grant of federal jurisdiction is plainly permissive, not mandatory, for the statute does not state nor even suggest that such jurisdiction shall be exclusive. It provides that suits of the kind described “may” be brought in the federal district courts, not that they must be.

Tafflin, 493 U.S. at 460-61, 110 S.Ct. at 796 (internal quotations omitted). Applying this reasoning to the instant case, it is clear that the language of the TCPA is insufficient to divest district courts of their federal question jurisdiction, as the statute merely provides that private suits “may” be brought in state court. See 47 U.S.C. § 227(b)(3).

The majority, however, declines to apply the reasoning of Tafflin on the ground that Tafflinconcerned divestment of state court jurisdiction whereas this case concerns divestment of federal court jurisdiction. According to the majority, because “[s]tate courts are courts of general jurisdiction, while federal courts are courts of only limited jurisdiction[,] … [t]he permissive authorization of jurisdiction in state courts does not imply that jurisdiction is also authorized in federal courts.”^[1] Maj. Op. at 516. This observation, while entirely accurate, is irrelevant to the issue before us. The appellants are not arguing that the TCPA authorizes federal jurisdiction by implication. Rather, the appellants simply maintain that the TCPA does not divest district courts of the federal question jurisdiction they already possess under 28 U.S.C. § 1331.^[2] Although the majority eventually confronts this issue in Part IIB of its opinion, it fails to explain adequately why it does not apply the Tafflin Court’s divestment analysis.^[3]

…

In the end, the majority fails to give any convincing reason for finding that the permissive grant of jurisdiction to state courts in the TCPA divests district courts of the jurisdiction they possess under 28 U.S.C. § 1331. Moreover, by rejecting the applicability of the Supreme Court’s reasoning in Tafflin, the majority reaches the odd conclusion that divestments of federal court jurisdiction over federal claims should be more easily found than divestments of state court jurisdiction over federal claims. In light of the longstanding and explicit grant of federal question jurisdiction in 28 U.S.C. § 1331, I would instead conclude that a divestment of district court jurisdiction should be as reluctantly found as a divestment of state court jurisdiction. Accordingly, I dissent.

Is it odd that Alito ruled on the exact-same-issue as a circuit judge and as a SCOTUS justice? I guess the facts are different, so no recusal issues are present. But Ginsburg cites Alito liberally (harharhar).

And some more about the exclusivity of jurisdiction:

That may be, but “[i]t is a general rule that the grant of jurisdiction to one court does not, of itself, imply that the jurisdiction is to be exclusive.” United States v. Bank of New York & Trust Co., 296 U. S. 463, 479 (1936). Nothing in the permissive language of §227(b)(3) makesstate-court jurisdiction exclusive, or otherwise purports tooust federal courts of their 28 U. S. C. §1331 jurisdiction over federal claims. See, e.g., Verizon Md., 535 U. S., at 643 (“[N]othing in 47 U. S. C. §252(e)(6) purports to strip [§1331] jurisdiction.”). Cf. Yellow Freight System, Inc. v. Donnelly, 494 U. S. 820, 823 (1990) (Title VII’s language—“[e]ach United States district court . . . shall have jurisdiction of actions brought under this subchapter,” 42 U. S. C.§2000e–5(f)(3)—does not “ous[t] state courts of their presumptive jurisdiction.” (internal quotation marks omitted)). Congress may indeed provide a track for a federal claim exclusive of §1331. See, e.g., 42 U. S. C. §405(h) (“No action . . . shall be brought under [§1331] to recover on any claim arising under [Title II of the Social SecurityAct].”); Weinberger v. Salfi, 422 U. S. 749, 756–757 (1975).Congress has done nothing of that sort here, however

So if a statute provides for exclusive jurisdiction in federal courts, the supremacy clause would say a state court must follow it, and dismiss for lack of subject matter jurisdiction. But what if that statute was unconstitutional, on the grounds that it (I don’t know) commandeered the states, or deprived state courts of sovereignty? Assume an individual would have standing to challenge that under Bond? Would that argument have any theoretical merit? Still giving this some thought.

The Court unanimously per the Chief reversed, finding that Perich was considered a “minister” and thus falls under the ministerial exception. Thomas concurred alone. Alito also concurred, joined by (curiously) Kagan. The Chief kept it narrow enough to prevent anyone from breaking off.

Roberts (majority)

At least someone is citing Magna Carta!

Controversy between church and state over religious offices is hardly new. In 1215, the issue was addressed in the very first clause of Magna Carta. There, King Johnagreed that “the English church shall be free, and shall have its rights undiminished and its liberties unimpaired.” The King in particular accepted the “freedom of elections,”a right “thought to be of the greatest necessity and importance to the English church.” J. Holt, Magna CartaApp. IV, p. 317, cl. 1 (1965).

And the Chief cited a law review article (albeit by Michael McConnell, but it still counts)!  Huzzah!

Seeking to escape the control of the national church, thePuritans fled to New England, where they hoped to elect their own ministers and establish their own modes of worship. See T. Curry, The First Freedoms: Church andState in America to the Passage of the First Amendment 3 (1986); McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev.1409, 1422 (1990).

And  post hoc ergo propter hoc originalism:

It was against this background that the First Amendment was adopted. Familiar with life under the established Church of England, the founding generation sought to foreclose the possibility of a national church. See 1 Annals of Cong. 730–731 (1789) (noting that the Establishment Clause addressed the fear that “one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform” (remarks of J. Madison)). By forbidding the“establishment of religion” and guaranteeing the “free exercise thereof,” the Religion Clauses ensured that thenew Federal Government—unlike the English Crown—would have no role in filling ecclesiastical offices. The Establishment Clause prevents the Government fromappointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.

And Louisville gets a shoutout!

Given this understanding of the Religion Clauses—and the absence of government employment regulation generally—it was some time before questions about government interference with a church’s ability to select its own ministers came before the courts. This Court touched upon theissue indirectly, however, in the context of disputes over church property. Our decisions in that area confirm that it is impermissible for the government to contradict a church’s determination of who can act as its ministers. In Watson v. Jones, 13 Wall. 679 (1872), the Court considered a dispute between antislavery and proslavery factions over who controlled the property of the WalnutStreet Presbyterian Church in Louisville, Kentucky. The General Assembly of the Presbyterian Church had recognized the antislavery faction, and this Court—applyingnot the Constitution but a “broad and sound view of the relations of church and state under our system of laws”—declined to question that determination. Id., at 727. We explained that “whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of [the] church judicatories to whichthe matter has been carried, the legal tribunals mustaccept such decisions as final, and as binding on them.”

And finally, the Chief gets to the meat.

Until today, we have not had occasion to consider whether this freedom of a religious organization to select its ministers is implicated by a suit alleging discrimination inemployment. The Courts of Appeals, in contrast, have had extensive experience with this issue. Since the passage of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., and other employment discrimination laws, the Courts of Appeals have uniformly recognized the existenceof a “ministerial exception,” grounded in the First Amendment, that precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers.2 We agree that there is such a ministerial exception. The members of a religious group put their faith in the handsof their ministers. Requiring a church to accept or retainan unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governanceof the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free
Exercise Clause, which protects a religious group’s right toshape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

And the Court narrowly construes Employment Division v. Smith. Interesting:

The EEOC and Perich also contend that our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), precludes recognition of aministerial exception. . . . It is true that the ADA’s prohibition on retaliation, likeOregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concernsgovernment interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government’s regulation of“physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”). The contention that Smith forecloses recognitionof a ministerial exception rooted in the Religion Clauses has no merit.

The Court applies the ministerial exception, but won’t set a clear test as to how apply it (shocker):

Every Court of Appeals to have considered the question has concluded that the ministerial exception is not limitedto the head of a religious congregation, and we agree. We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister. It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.

So the Court can’t recognize Privileges or Immunities in McDonald because they can’t identify the full-extent of the right, but in the first case of the ministerial exception, the Court simply applies it to the facts of the case. Judicial modesty my buttocks (sorry, still giggling from oral argument in Fox v. FCC yesterday).

At which point Roberts goes through all of Perich’s duties and responsibilities.

In light of these considerations—the formal title givenPerich by the Church, the substance reflected in that title, her own use of that title, and the important religiousfunctions she performed for the Church—we concludethat Perich was a minister covered by the ministerial exception

And the Court goes further, saying an order to reinstate Perich (what the EEOC wanted) would violate the Constitution:

Because Perich was a minister within the meaning of the exception, the First Amendment requires dismissal of this employment discrimination suit against her religiousemployer. The EEOC and Perich originally sought anorder reinstating Perich to her former position as a called teacher. By requiring the Church to accept a minister itdid not want, such an order would have plainly violated the Church’s freedom under the Religion Clauses to selectits own ministers.

Roberts does note in a footnote that the ministerial exception is “an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar.”

That is because the issue presented by the exception is “whether the allegations the plaintiffmakes entitle him to relief,” not whether the court has “power to hear[the] case.” Morrison v. National Australia Bank Ltd., 561 U. S. ___, ___ (2010) (slip op., at 4–5) (internal quotation marks omitted). District courts have power to consider ADA claims in cases of this sort, and todecide whether the claim can proceed or is instead barred by the ministerial exception.

The Court alluded to the potential that a Church would discriminate against an employee, under the robe of the ministerial exception.

The EEOC and Perich suggest that Hosanna-Tabor’sasserted religious reason for firing Perich—that she violated the Synod’s commitment to internal dispute resolution—was pretextual. That suggestion misses the point of the ministerial exception. The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exceptioninstead ensures that the authority to select and controlwho will minister to the faithful—a matter “strictly ecclesiastical,”

Roberts punts on concerns that a church could retaliate against an employee for reporting abuse (I think Sotomayor asked about this during args, obviously alluding to Catholic church scandal)

The EEOC and Perich foresee a parade of horribles that will follow our recognition of a ministerial exception toemployment discrimination suits. According to the EEOCand Perich, such an exception could protect religiousorganizations from liability for retaliating against employ ees for reporting criminal misconduct or for testifyingbefore a grand jury or in a criminal trial. What is more, the EEOC contends, the logic of the exception would confer on religious employers “unfettered discretion” to violate employment laws by, for example, hiring children oraliens not authorized to work in the United States. Brief for Federal Respondent 29. . . .

The case before us is an employment discrimination suitbrought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view onwhether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exceptionto other circumstances if and when they arise.

How did Justice Ginsburg join this sentence, I am unsure.

The interest of society in the enforcement of employment discrimination statutes is undoubtedly important.But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

Thomas (concurring)

 

Thomas also writes separately to stress that the Constitution compels courts to defer to the religious organization’s views.

I write separately to notethat, in my view, the Religion Clauses require civil courtsto apply the ministerial exception and to defer to a religious organization’s good-faith understanding of whoqualifies as its minister. As the Court explains, the Religion Clauses guarantee religious organizations autonomy in matters of internal governance, including the selectionof those who will minister the faith. A religious organization’s right to choose its ministers would be hollow, however, if secular courts could second-guess the organization’s sincere determination that a given employee is a“minister” under the organization’s theological tenets. Our country’s religious landscape includes organizationswith different leadership structures and doctrines thatinfluence their conceptions of ministerial status. The question whether an employee is a minister is itself religious in nature, and the answer will vary widely. Judicial attempts to fashion a civil definition of “minister” througha bright-line test or multi-factor analysis risk disadvantaging those religious groups whose beliefs, practices, and membership are outside of the “mainstream” or unpalatable to some.

If the group “sincerely consider[s]” someone a minister, then that they are:

The Court thoroughly sets forth the facts that lead to itsconclusion that Cheryl Perich was one of Hosanna-Tabor’sministers, and I agree that these facts amply demonstrate Perich’s ministerial role. But the evidence demonstrates that Hosanna-Tabor sincerely considered Perich a minister. That would be sufficient for me to conclude that Perich’s suit is properly barred by the ministerial exception.

Alito (concurring with Kagan)

Alito wrote separately with Kagan to caution reliance on the concept of ordination, which is only present in certain faiths, as a test. Rather, the Court should “focus on the function performed by the person.”

I join the Court’s opinion, but I write separately toclarify my understanding of the significance of formal ordination and designation as a “minister” in determiningwhether an “employee”1 of a religious group falls withinthe so-called “ministerial” exception. The term “minister” is commonly used by many Protestant denominations torefer to members of their clergy, but the term is rarely if ever used in this way by Catholics, Jews, Muslims, Hindus, or Buddhists.2 In addition, the concept of ordination as understood by most Christian churches and by Judaism has no clear counterpart in some Christian denominations and some other religions. Because virtually every religionin the world is represented in the population of the UnitedStates, it would be a mistake if the term “minister” or the concept of ordination were viewed as central to the important issue of religious autonomy that is presented incases like this one. Instead, courts should focus on the function performed by persons who work for religious bodies.

The First Amendment protects the freedom of religious groups to engage in certain key religious activities, including the conducting of worship services and other religiousceremonies and rituals, as well as the critical process of communicating the faith. Accordingly, religious groupsmust be free to choose the personnel who are essential tothe performance of these functions.
The “ministerial” exception should be tailored to this purpose. It should apply to any “employee” who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith. If a religious group believes that the ability of such an employee to perform these key functions has been compromised, then the constitutional guarantee of religious freedom protects the group’s right to remove the employee from his or her position.

This view conflicts with the majority’s discussion of the importance of the title.

[The lower court] failed to see any relevance in the fact that Perich was a commissioned minister. Although such a title, by itself, does not automatically ensure coverage, the fact that an employeehas been ordained or commissioned as a minister is surely relevant, as is the fact that significant religious training and a recognized religious mission underlie the description of the employee’s position. It was wrong for the Court of Appeals—and Perich, who has adopted the court’s view,see Perich Brief 45—to say that an employee’s title does not matter.

 

And Justice Alito cites foreign law–the Qur’an!!! Don’t tell Oklahoma.

3In Islam, for example, “every Muslim can perform the religious rites,so there is no class or profession of ordained clergy. Yet there are religious leaders who are recognized for their learning and their abilityto lead communities of Muslims in prayer, study, and living accordingto the teaching of the Qur’an and Muslim law.” 10 Encyclopedia of Religion 6858 (2d ed. 2005).

Alito addresses a situation where a Catholic Church fires a priest who gets married.

At oral argument, both respondent and the UnitedStates acknowledged that a pretext inquiry would sometimes be prohibited by principles of religious autonomy, and both conceded that a Roman Catholic priest who is dismissed for getting married could not sue the churchand claim that his dismissal was actually based on a ground forbidden by the federal antidiscrimination laws.See Tr. of Oral Arg. 38–39, 50. But there is no principledbasis for proscribing a pretext inquiry in such a case whilepermitting it in a case like the one now before us. The Roman Catholic Church’s insistence on clerical celibacy may be much better known than the Lutheran Church’sdoctrine of internal dispute resolution, but popular familiarity with a religious doctrine cannot be the determinativefactor.

What matters in the present case is that Hosanna-Tabor believes that the religious function that respondent performed made it essential that she abide by the doctrine of internal dispute resolution; and the civil courts are in noposition to second-guess that assessment. This conclusion rests not on respondent’s ordination status or her formal title, but rather on her functional status as the type of employee that a church must be free to appoint or dismissin order to exercise the religious liberty that the FirstAmendment guarantees.

I can’t imagine Justice Stevens joining this opinion. Some buyer’s remorse on free exercise jurisprudence coming soon? And nothing from RBG or Breyer on Ministers and Rabbis?