July 17, 2026 | Volume 33, Issue 19
This Report summarizes opinions issued on June 29, 2026 (Part I).
Opinions
Trump v. Slaughter, 25-332.
By a 6–3 vote, the Court held that statutory removal protections for members of the Federal Trade Commission are “contrary to the separation of powers enshrined in the Constitution.” In March 2025, President Trump fired Rebecca Slaughter, then serving as a Commissioner at the FTC. Under 15 U.S.C. §41, FTC Commissioners may be removed by the President only for “inefficiency, neglect of duty, or malfeasance in office.” President Trump did not cite any of these causes, instead invoking “his authority under Article II of the Constitution.” Slaughter brought suit alleging violations of the Administrative Procedure Act and the Constitution. She petitioned the courts to restore her to office. The district court granted her motion for summary judgment. It acknowledged the President’s general authority to remove executive officers at will under Myers v. United States, 272 U.S. 52 (1926), but found that Humphrey’s Executor v. United States, 295 U.S. 602 (1935), had created an exception for the FTC. A divided D.C. Circuit panel agreed and denied the President’s motion for a stay pending appeal. In a decision by Chief Justice Roberts, the Court reversed and remanded.
The Court held that the FTC is an executive agency and that any restrictions on the President’s authority to remove executive officers unconstitutionally infringe on the President’s executive authority. The Court invoked history and the Founders’ intent to show that the Constitution established an executive hierarchy. The whole executive power, it ruled, is vested in the President. The Founders intended to consolidate all executive power in the President to allow him to act with the “vigor and activity” necessary to check legislative overreach. Further, the President’s sole authority makes it clear to the people who they could hold responsible for how that power was deployed. The Court explained that the Framers understood that the executive’s duties could not be carried out by the President without assistance. Beneath the President, the framers envisioned “assistants or deputies” that derived their office and authority from the President through the appointment process. But, the Court found, these positions were intended to be clearly subordinate to the President, and “had to be removable by him at will.”
The Court emphasized that when the First Congress created the first executive agencies, it confronted the issue of removal directly. After extensive debate, Congress adopted the above theory of executive removal in what is now known as the Decision of 1789. Thus, the Court noted, language expressly granting the authority to remove the Secretary of Foreign Affairs was removed because it might “wrongly suggest that the President lacked any removal power unless Congress provided for it by statute.” Over the next several decades, said the Court, even “those who opposed Congress’s decision recognized that the decision had been made.” Early Presidents from Washington to Jackson “hewed to the Decision of 1789,” both by removing subordinates and in their discourse on the subject.
The Court then considered precedent. Its 19th-century jurisprudence acknowledged that the Constitution’s text was silent on removal. But those precedents also recognized that “where the tenure of the office was not fixed by the Constitution,” the power “was vested in the President alone.” Ex Parte Hennen, 38 U.S. 230, 259 (1839). In Myers v. United States, Chief Justice Taft reaffirmed the President’s authority to remove subordinates at will. There, the Court held that not only had the Decision of 1789 concluded that Presidents alone held this power, but that all branches of government soon accepted this decision as final. Myers emphasized that for “74 years, there was no act of Congress, no executive act, and no decision of this Court at variance with the [Decision of 1789].” After the Civil War, Congress attempted to reverse course by passing the Tenure of Office Act over the veto of President Johnson. Myers noted consistent presidential resistance to that law until it was later repealed. Myers thus held that any law contrary to the construction reached in the Decision of 1789 was unconstitutional.
Nine years after the Myers decision, the Court pivoted. In Humphrey’s Executor, the Court held that President Roosevelt lacked the authority to remove William Humphrey from his position as the Chair of the FTC. While Humphrey’s recognized the President’s “‘exclusive and illimitable power’ to remove ‘all purely executive offices,’” it held that Humphrey’s office did not qualify. Humphrey’s reasoned that, because the FTC’s duties were “neither political nor executive, but predominantly quasi-judicial and quasi-legislative,” it did not require executive power to perform its functions. And so, held Humphrey’s, although the President may be “master in his own house, he may not impose his control in the house of another.” The Court here held that the “Humphrey’s framework . . . has not withstood the test of time.”
After Humphrey’s, decisions increasingly found duties identified as quasi-judicial or quasi-legislative to truly be executive in nature and expressed skepticism for the applicability of these categories. Indeed, in Morrison v. Olson, 487 U.S. 654 (1988), the Court acknowledged that the FTC’s powers even at the time of Humphrey’s “would at present time be considered ‘executive,’ at least to some degree.” More recently, the Court declined to apply Humphrey’s to new situations in Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010), and Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020). And so the Court clarified here that although Congress may establish independent agencies to assist with its functions, “it may not foist those agencies upon the President, and thus deprive him of the executive power vested [in him] by the Constitution. . . . If anything more is left of Humphrey’s, we overrule it.”
The Court then addressed two principal concerns raised in the dissent. First, the Court held that stare decisis could not save Humphrey’s. Stare decisis is “at its weakest in constitutional cases where only [the Court] may readily fix [its] own mistakes.” The Court then considered the four factors outlined in past cases and found that each weighed against retaining Humphrey’s. The Court pointed to the incoherency of the quasi categories, the Court’s retreat from applying the Humphrey’s rule, and conflicting interpretations of that rule from the lower courts. As to reliance, the Court agreed with the dissent that Congress had relied on Humphrey’s to create independent agencies. But “[t]hat [was] precisely the problem.” While Congress attempted to shield agencies from presidential control, they could not truly shield them from politics. Restricting the President’s removal authority had the effect of increasing Congress’s own authority over the agencies. At bottom, said the Court, its decision served the reliance interests of the American people. “‘When power is exercised well, the people know whom to thank; when power is exercised poorly, they know whom to blame—and whom to fire. That is the very premise of our system of government.’ See The Federalist No. 70, at 424 (A. Hamilton) (internal quotation omitted). We adhere to that system today not in spite of the reliance interests of all Americans but because of them.”
Justice Gorsuch filed a concurring opinion. He agreed that “those who exercise executive power must be ultimately answerable to the President and, through him, to the American people.” He wrote separately to address the effect of this decision. In Justice Gorsuch’s view, Congress “[a]pparently rel[ied]” on Humphrey’s rule in granting independent agencies executive, legislative, and judicial power. Now, with Humphrey’s overruled, “the fourth branch’s powers still exist; they have just been reassigned to the President.” Justice Gorsuch concluded that the Court was better equipped to prevent or correct the accumulation of power in the President’s hands than Congress was. With independent agencies no longer an option, “the only sure path is to finish the journey we start today and restore legislative and judicial powers to where they belong: in Congress and the courts.”
Justice Sotomayor filed a dissenting opinion, which Justices Kagan and Jackson joined. Justice Sotomayor argued that “[t]his case should have begun and ended with . . . Humphrey’s Executor v. United States.” The Court, in Justice Sotomayor’s view, should have given Humphrey’s deference under stare decisis, particularly because “Congress and more than a dozen Presidents have relied on [it] to construct a workable Government.” She highlighted that the Government struggled to find examples of presidential resistance to for-cause removal provisions beyond Humphrey’s. Justice Sotomayor contended that the Court “repeatedly applied and expanded the rule announced in Humphrey’s,” and had “easily” applied its rule for decades. In contrast, Myers “had been left on the sidelines long before today,” beginning with Humphrey’s’ disapproval of all parts of it that did not align with its decision.
Justice Sotomayor rejected the Court’s historical analysis. After noting that even the English Crown’s removal power was subject to limits, she argued that the removal question was never as settled domestically as the Court believed. Hamilton explained that “[t]he consent of [the Senate] would be necessary to displace as well as to appoint.” And Madison taught that “[t]he tenure of the ministerial offices, generally, will be a subject of legal regulation, conformably to the reason of the case and the example of the State constitutions.” Justice Sotomayor highlighted that the Constitution itself is silent on the President’s removal authority, but expressly grants the comparable impeachment power to Congress. See Art. I, §3, cls. 6–7; Art. II, §4. “The very need for a Decision of 1789 suggests that the removal question was still unanswered by 1789.” In the dissent’s analysis, while the Decision of 1789 did decide that the President held removal power through the Constitution, it did not render Congress impotent to modify that power. Though “spirited debate” on the topic endured, “limitations on Presidential removal power nonetheless were enacted” and then broadly adhered to. Finally, Justice Sotomayor expressed concern about the practical ramifications of the Court’s decision. The dissent concluded that, “[i]n granting the President this unbridled authority, the Court upends its precedent, misconstrues our history, and sheds any pretense of judicial modesty.”
Trump v. Cook, 25A312.
By a 5-4 vote, the Court kept in place a lower court order enjoining President Trump’s attempt to remove Federal Reserve Board member Lisa Cook “for cause” based on alleged mortgage fraud she had committed prior to her serving as a Board member. In so holding, the Court ruled that the Constitution permits Congress to impose a “for cause” removal requirement on Federal Reserve Board members. Cook was appointed to the Board of Governors of the Federal Reserve in 2022 and confirmed again for a full term, intended to last until 2038. On August 20, 2025, the Federal Housing Finance Agency’s Director posted on social media an accusation that Cook had engaged in mortgage fraud prior to her service on the Board. President Trump publicly called for Cook’s resignation, posting “Cook must resign, now!!!” Five days later, Trump fired Cook, stating in a letter that he had “reason to believe” she “may have made false statements on one or more mortgage agreements.” Cook filed suit, arguing that the removal was not “for cause,” as required by 12 U.S.C. §242, and that she had not been afforded notice and opportunity to respond to the charges in violation of the statute and the Due Process Clause. The district court preliminarily enjoined Cook’s removal, finding (among other things) that Cook was likely to succeed on the merits of both claims. On the former, the court held that “cause” refers only to “an official’s in-office conduct or performance.” On the latter, it held that the Constitution entitled Cook “to notice and a hearing before her termination”—process she had not received. The D.C. Circuit refused to stay the injunction. In an opinion by Chief Justice Roberts, the Court held that Cook was entitled to a temporary injunction because she was not afforded required pre-removal procedures. Along the way, the Court addressed the meaning of “cause” in §242 and the constitutionality of “for cause” removal limitations in this context.
The Court opened with a lengthy history of the Federal Reserve, beginning with the Bank of North America, and focusing on the national banks’ independence. For example, the Court cited to Alexander Hamilton’s belief that a national bank must be under private direction to ensure long-term economic stability and maintain public confidence. The Court then considered and rejected the Government’s three arguments: “that a removal for cause under the statute is not judicially reviewable; that even if the removal is reviewable, cause is a low bar satisfied by any concerns about a Governor’s conduct, ability, fitness, or competence; and that even if the Government did not show cause to remove Cook, she is nevertheless not entitled to remain in office while litigation over the removal is pending.” The Court stated that “[t]o accept any one of those arguments would in effect transform the Federal Reserve’s for-cause protection into at-will employment—an interpretive leap out of step with the statute Congress enacted and our Nation’s tradition of central banking protected from political interference.”
On justiciability, the Court stated that it is the Court’s duty to independently interpret statutes to “effectuate the will of Congress,” even when a statute gives some discretion to the President. “Congress could of course afford the President the power to remove Federal Reserve Governors at will. Or Congress could exempt the President’s removal of Governors for cause from judicial review. But Congress has done neither.” The Government had cited Reagan v. United States, 182 U.S. 419 (1901), and several common law cases in support of its position, but the Court found that neither on point.
The Court next addressed and rejected the competing proposed standards for what constitutes “cause” under §242. The Court ruled that the President’s proposed standard (“cause” is “any concern . . . about a person’s ‘conduct, ability, fitness, or competence’”) is too lenient, while Cook’s proposal (equating “cause” with “‘the existing causes for presidential removal of executive officers’ as defined by various other statutes”) sets too high a bar. The Court instead looked to common law, which formed the “backdrop” of §242. And the common law “emphasized that the cause identified must be ‘substantial, reasonable and just,’ a ‘disqualification’ akin to ‘inefficiency’ or ‘incompetency.’” (Citation omitted.) The Court concluded that “[f]or present purposes, it is sufficient to observe that any definition of ‘cause’ in this context must reflect the Federal Reserve’s unique historical status and role.” Looking at that role, the Court explained that “[n]ot only the fact of independence but also the appearance of independence is key to the Federal Reserve’s design. That counsels a substantial threshold for ‘cause.’ . . . The key issue is whether ‘[t]he cause assigned’ truly ‘impl[ies] an unfitness for the place’—or whether it simply represents an effort to secure a ‘more congenial’ replacement.”
The Court rejected the Government’s contention that the courts at the very least lacked jurisdiction to grant injunctive relief for removal from public office because a court of equity would not have heard the case. The Court found historical support for courts providing “equitable remedies for de facto officers, like Cook, who required immediate relief ‘to protect [their status] during the course of th[e] litigation’ at law.” The Court then provided such relief to Cook, holding that “[n]o matter the precise definition of cause, or the scope of our review of any such determination, the President failed to afford Cook the procedural protections to which she was entitled by statute.” The Court concluded that Cook’s position as an officer for a term of years with removal only for cause guaranteed her the right to notice and an opportunity to respond. It noted that when Congress enacted the relevant provision, its precedents and common law courts had established that “for cause” protection implied a notice and hearing requirement. And although the Government halfheartedly contended that Cook was afforded notice when the President posted to social media about her resignation, the Court disagreed because the post did not clearly set out the charges against Cook or provide an appropriate opportunity for response.
The Court went on to address Justice Thomas’s contention in dissent that the statute is an “unconstitutional” infringement on the President’s power to “remove his subordinates at will.” The Court “disagree[d], as did the founders of our Government and framers of our Constitution when they were actively participating in public affairs.” (Quotation marks omitted.) The Court found that the Federal Reserve follows in the “lineage” of the First and Second Banks of the United States, both of which were guaranteed independence from Presidential control because “of the calamities that could arise from even the ‘suspicion’ of political manipulation of monetary policy.” In this regard, “the Federal Reserve maintains the balance struck by the founding generation under modern circumstances.” (Quotation marks omitted.) The Court acknowledged that the lower courts had not reached this constitutional question, but said it was providing guidance so not to “sow doubt as to the status of one of our Nation’s (and the world’s) most important financial institutions.”
Justice Kavanaugh wrote a concurring opinion to emphasize that the Court did not and could not decide whether Cook could be fired “for cause”―an issue whose resolution will depend on not-yet-determined facts. He also clarified that the Federal Reserve remains an independent agency notwithstanding the Slaughter decision because of its history and need for apolitical appearance. And the Court needed to resolve the constitutional issue because to delay resolving the issue would “risk destabilizing the U.S. economy.”
Justice Jackson wrote a concurring opinion which argued that the Court should have focused on the balance of equities. She maintained that the Government’s claimed injury is just “another species of the far-fetched contention that the President [is] injured whenever he is prevented from doing as he wishes.” By contrast, “the public’s interest is not served if a President can intimidate members of the Federal Reserve into doing his bidding. Experience has taught that high inflation, price variability, and, ultimately, financial panic can result when the Federal Reserve is subjected to rank politicization.”
Justice Thomas wrote a dissenting opinion maintaining that the President is likely to succeed on the merits. He asserted first that Cook’s due process claim fails because her office is not property under Taylor v. Beckham, 178 U.S. 548 (1900). Second, he asserted that “for cause” is a low standard that was met by the mortgage fraud alleged in the letter. In his view, “the ‘for cause’ standard required nothing more than what the plain meaning suggests—a cause. Any ‘cause relating to the conduct, ability, fitness, or competence of the officer’ would do.” Third, Justice Thomas concluded that “[t]he President’s removal of Cook complied with the statute regardless of whether he provided notice and a hearing. The statute, as its plain text makes clear, did not require the President to provide Cook with notice and a hearing.”
Justice Thomas next asserted that “[t]he Court’s interpretation is also inconsistent with Article II and the canon of constitutional avoidance” because “[l]imits on the President’s ability to remove executive officers are unconstitutional.” Justice Thomas relied on Slaughter and insisted that “members of the Federal Reserve Board exercise a great deal of federal executive power.” He rejected the Court’s “ahistorical analogy between the Board and the First and Second Banks of the United States,” asserting that whereas “the First and Second Banks were banks with no executive power, [] the Board is unquestionably a federal agency that wields considerable executive power.” Justice Thomas added his views that (1) Cook lacks a right of action that can overcome sovereign immunity; (2) “courts of equity could not grant injunctions to wrongly removed officers to restore them to office”; (3) “the Judiciary lack[s] the power to impede the President’s removal of his own executive officers”; and (4) “the balance of harms and equities also favors the President.”
Justice Alito also wrote a dissent, joined by Justice Gorsuch, arguing that the Court should have issued a brief ruling without hearing oral argument so that the merits could have been litigated quickly. Justice Alito further maintained that the Court should have addressed only the two issues addressed by the lower courts: “(1) whether removal ‘for cause’ is limited to removal for in-office conduct, and (2) whether the President’s attempt to remove Cook violated the Due Process Clause.” And, Justice Alito concluded, the lower courts were wrong on those two discrete issues.
Justice Barrett, in dissent, echoed that view. She asserted that the Court should not have addressed the constitutional issue and should instead have limited itself to the two issues addressed by the lower courts. Justice Barrett also contended that “there is a disconnect between its holding and its disposition line,” which the Court sought to fix by misreading the lower court’s injunction.
Watson v. Republican National Committee, 24-1260.
By a 5–4 vote, the Court held that the federal election-day statutes do not preempt a Mississippi law that allows absentee ballots postmarked by election day but received up to five days later to be counted. Three federal statutes set the day for the “election” of Representatives, Senators, and the President on the Tuesday after the first Monday in November. See 3 U.S.C. §1; 2 U.S.C. §§1, 7. Mississippi permits certain residents, such as college students temporarily away from home and senior citizens, to vote absentee and provides that absentee ballots must be “postmarked on or before the date of the election and received by the registrar no more than five (5) business days after the election.” Mississippi is one of roughly 30 states that count at least some absentee ballots mailed by election day but received afterward. In 2024, the Republican National Committee, the Mississippi Republican Party, and various individuals filed suit, contending that federal law bars the state from counting ballots received after election day. According to plaintiffs, the election-day statutes use the word “election” to refer to two acts: ballot casting and ballot receipt. Thus, the plaintiffs argued, by setting the day for the “election,” these statutes fix a deadline for both. The Libertarian Party of Mississippi filed a similar suit. After consolidating the cases, the district court granted summary judgment to Mississippi. The Fifth Circuit reversed, holding the state statute preempted because the federal election-day statutes require ballots to be received by election day. In an opinion by Justice Barrett, the Court reversed and remanded.
The Court reasoned that “[t]he defining element of an ‘election’ . . . has always been the electorate’s choice of candidate.” Invoking the ordinary-meaning canon, the Court noted that at all relevant points the word “election” was understood to mean “[t]he act of choosing a person to fill an office.” The Court had likewise long defined an election as “the expression by qualified electors of their choice of candidates.” United States v. Classic, 313 U.S. 299, 318 (1941). That choice, the Court held, “is made when voting is complete, not when ballots are received.” The most recent amendment to the Presidential election-day statute confirmed the point. There, Congress provided that when states “modif[y] the period of voting” in response to certain force majeure events, the term “election day” shall “include the modified period of voting.” Because Congress thus “defined ‘election day’ with reference to ‘voting,’ voting” is the act the statute governs.
The Court found that a related statute―the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA)―reinforced that reading. UOCAVA “repeatedly presupposes that ballot receipt is a matter of state law.” For example, UOCAVA provides that a federal absentee ballot “shall not be counted” if a state receives the voter’s state absentee ballot by “the deadline for receipt of [that] ballot under State law.” If the election-day statutes established a nationwide ballot receipt deadline, the Court reasoned, “these references to state ballot-receipt deadlines would make little sense.” The Court added that its interpretation was consistent with the Constitution’s treatment of the electoral college, which requires that the “Day on which [the electors] shall give their Votes” be “the same throughout the United States,” Art. II §1 cl. 4, yet “says nothing about the day for receipt.” The Constitution thus “envisions a system in which receipt is necessarily divorced from voting,” and “[t]he federal election-day statutes follow the same pattern.”
The Court then addressed plaintiffs’ reliance on historical practice, precedent, and policy. Plaintiffs emphasized that in the mid-to-late 19th century, ballot receipt occurred on election day, and that Civil War-era statutes authorizing absentee voting imposed strict election day receipt deadlines. But plaintiffs conceded they could not “precisely” tie that practice to the text of the election-day statutes, and the Court noted that legislatures “may have used an election-day deadline for any number of reasons.” The Court further explained that plaintiffs’ theory was “that because we are governed by 19th-century election day laws, we are also governed by 19th-century voting practices,” a view that would “call into question the way modern elections work,” including early voting. The Court held that statutes do not “tra[p] in amber” every contemporary practice on the same subject.
The Court closed by addressing a late-raised argument that Mississippi’s system offends the federal statutes because the Postal Service and common carriers permit mail to be recalled prior to actual delivery so that the electorate’s choice is not actually fixed on election day. Because plaintiffs had never independently challenged ballot recall (it appeared nowhere in the complaints) the Court declined to resolve it, noting that even if plaintiffs were correct about Mississippi law, they would still lose “the challenge they have pressed in this litigation: that post-election-day ballot receipt is itself unlawful.” State law, as the Court stressed, is preempted “only ‘so far as the conflict extends.’”
Justice Alito filed a dissenting opinion, which Justices Thomas and Gorsuch joined in full and Justice Kavanaugh joined as to all but Parts II-C-2 and III. Justice Alito agreed that an election is “the expression of the electorate’s choice,” but reasoned that because “the electorate is a collective body,” its choice is “embodied in the collection of ballots cast by the individuals who make up the electorate.” That choice is “authoritatively expressed” only when “the collection of individual ballots is completed”; the election-day statutes demand that this authoritative choice “be made on election day.” On the dissent’s view, accepting ballots for five days after election day “effectively postpones the date on which the electorate’s choice is made,” which federal law forbids. The dissent marshaled era-specific legal dictionaries defining “election” to include “the act of casting and receiving the ballots,” together with 19th-century usage under which a voter merely made an “offe[r] to vote” until an official took custody of the ballot.
Justice Alito then invoked “[t]wo centuries of historical practice,” contending that from the founding until the late 20th century, “having an ‘election’ on a particular day meant completing ballot collection on that day.” He emphasized that during the Civil War, states that enabled soldiers to vote from afar still required that ballots be received by election day. He dismissed the World War-era departures as “short-lived outlier rules” that postdated the statutes. On UOCAVA, the dissent argued that the related-statute canon carries a “steep” threshold―demanding that a contrary reading make “nonsense out of the corpus juris.” Yet UOCAVA’s cross references are readily explained because that statute also governs primary elections, which the election-day statutes do not reach. Justice Kavanaugh joined neither this related-statute analysis nor the dissent’s rebuttal to the majority’s account of why 19th-century states collected ballots by election day.
Finally, Justice Alito warned that the decision “spawns a slurry of troubling election-law questions,” like whether any federal receipt deadline survives, whether states may authorize delivery by third-party couriers or “ballot harvester[s],” and how ballot-recall services bear on the finality of the voter’s choice, all questions that “risk[] further undermining Americans’ confidence in election integrity.” Citing sources describing absentee voting as a significant source of potential fraud, Justice Alito cautioned that permitting ballots to “flow in after election day and potentially flip the result” invites “charges of a rigged election.”
Chatrie v. United States, 25-112.
By a 5-1-3 vote, the Court held that police officers conducted a Fourth Amendment search when they gathered petitioner’s historical cell phone location data from Google via a geofence warrant. A geofence warrant is a search warrant that allows law enforcement to obtain information about devices that were within a virtual perimeter during a specified period of time. Because many Google users have enabled a service called “Location History,” which “records the locations of a user’s cell phone every two minutes or so,” Google can provide this information to law enforcement. After a bank robbery, law enforcement obtained a geofence warrant from a magistrate judge for a 150-meter radius around the bank. Geofence warrants proceed in a three-step process. First, Google provides anonymized location data for cell phones within the geofence. Second, law enforcement reviews the initial data and requests further, still anonymized, information on a subset of users. Third, law enforcement reviews the data, narrows the pool again, and requests identifying information for the remaining devices. Following this process, Google supplied identifying information for three device users on the final list. Okello Chatrie was one of those users. After being charged with robbery, Chatrie moved to suppress his location information, arguing that this procedure was a search that violated the Fourth Amendment. The district court agreed, but declined to apply the exclusionary rule, finding that the good-faith exception applied. A Fourth Circuit panel affirmed, but alternatively held that there was no search because Chatrie did not have a reasonable expectation of privacy in his Location History, so the government did not need a warrant. Rehearing en banc, the Fourth Circuit affirmed per curiam in a one-sentence opinion, but was evenly divided on whether a search had occurred. In an opinion by Justice Kagan, the Court vacated and remanded.
The Court held that law enforcement officials conducted a search “because an individual has a legitimate expectation of privacy in his cell-phone location data.” The Court relied heavily on Carpenter v. United States, 585 U.S. 296 (2018), where it held that accessing historical cell-site location data (CSLI) constituted a search because it violated an individual’s reasonable expectation of privacy. In Carpenter, the Court noted that because people “’compulsively carry’ their cell phones ‘all the time,’” CSLI can provide “an intimate window into a person’s life.” The Court observed here that “everything Carpenter relied on . . . applies as well or better to the police’s accessing of Google’s Location History data.”
The Court observed that Location History is more precise than CSLI and thus more invasive. Carpenter’s CSLI placed the defendant “within a ‘sector ranging from one-eighth to four square miles,’” but “Location History pinpointed Chatrie’s location within around twenty meters.” Further, CSLI reported Carpenter’s location an average of 101 times per day, but Location History reports location an average of 720 times per day. Plus, like CSLI, Location History allows for retrospective monitoring, making what was once indeterminable, determinable, raising “formerly unimaginable ‘privacy concerns.’” Also, Google users can retrieve their own Location History data on their devices, “resembl[ing] other private materials—think of emails, documents, photographs, or calendars—that even if stored on Google’s servers, a user reasonably views as his own.” As such, a reasonable person expects those private materials “to be shielded from the ‘inquisitive eyes’ of the government.”
The Court dismissed the Government’s argument that limited duration brings the investigation outside the scope of the Fourth Amendment, noting that even a brief surveillance can expose intimate information to the government. Further, the “sweep of the official invasion is not made less because the government, with the benefit of hindsight, can pinpoint exactly which few hours of movements it wants to review.” The Court also rejected the Government’s reliance on United States v. Knotts, 460 U.S. 276 (1983), which held that use of an electronic beeper to follow a vehicle did not constitute a search. Surveillance in Knotts was confined to public roads, but Location History can be much more intrusive, as it can spread the investigation to private places, including homes and businesses.
The Court next concluded that, just as Carpenter did not apply the third-party doctrine to CSLI, there is “no good reason” to apply it to Location History. First, Carpenter concluded that “the ‘nature’ of CSLI is incomparably ‘revealing,’” prompting privacy concerns beyond instances where the Court has applied the third-party doctrine (such as “telephone numbers and bank records”). Applying this logic, the Court concluded that “Location History is even more ‘revealing’ than CSLI” because it “enables officials to undertake nearly perfect, retrospective surveillance of countless persons and places.” Second, Carpenter concluded that CSLI data is not voluntarily shared in any “meaningful sense.” Because cell phone usage is “indispensable to participation in modern society,” Carpenter concluded that “a person can hardly help but generate a ‘trail of location data.’” Location History is similarly involuntary and pervasive; it “is merely what happens when a user avails himself of one of the services on his cell phone.” While the Government contended that Google users must affirmatively opt-in to Location History tracking, the Court rejected this argument, noting that Google repeatedly and frequently prompts users to turn on Location History (and on Android devices, Google informs the user “that his device will not ‘work correctly’ unless he does so”). On top of that, “[p]retty much everything a person does on a smartphone requires some kind of opt-in” and thereby shares information with a third-party. If the Court were to expand the third-party doctrine to any time a person opts-in, it would defeat the “point of carrying smartphones:” “to use what is on them.”
After concluding there was a search, the Court remanded the question of “whether the warrant satisfied the Fourth Amendment’s probable cause and particularity requirements” to the Fourth Circuit because it was not examined below.
Justice Jackson filed a concurring opinion, which Justice Sotomayor joined. Justice Jackson agreed that the officers conducted a search, but said that she would have gone further to address the warrant question. She concluded that “at a minimum the second and third stages of the search process here did not satisfy” the Fourth Amendment’s probable cause and particularity requirements. At stages two and three of the warrant procedure, “the warrant stated that officers would ‘attempt to narrow down the list’ of devices.” (Citation omitted). Because “there was no explicit requirement” that the officers narrow down the list, nor did the warrant include “any criteria that officers would use in their narrowing efforts,” officers did not have to make probable cause determinations at each of these stages in front of a neutral and detached magistrate. For Justice Jackson, this left too much discretion to the officers such that the warrant did not satisfy the Fourth Amendment.
Justice Gorsuch filed an opinion concurring in the judgment. He agreed that obtaining Chatrie’s Location History was a search but would have employed a “traditional” property-based analysis rather than a reasonable-expectation-of-privacy analysis. Justice Gorsuch asserted that the reasonable-expectation-of-privacy test, first established in Katz v. United States, 389 U.S. 347 (1967), “has no basis in the Constitution’s text or history.” Instead, the Fourth Amendment considers “concrete terms” that indicate property. Aside from the textual dissonance, Justice Gorsuch argued that the Katz test is unworkable, which has been exacerbated by the addition of the third-party doctrine. Taking a property-based approach, Justice Gorsuch said that a court should ask whether the item is a “paper[] or effect[]” and whether the government searched that paper or effect. He noted that “effects,” as understood at the time of the Fourth Amendment’s adoption, “embrace most any kind of personal property.” Because “Chatrie had the rights to enjoy, manage, alter, dispose, and exclude others from what amounted to an electronic diary or map of his travels,” his Location History fit in this broad definition. Justice Gorsuch thus concluded that the government conducted a search “when it compelled Google to rummage through Mr. Chatrie’s data.”
Justice Alito filed a dissenting opinion, which Justices Thomas and Barrett joined in parts. First, Justice Alito argued that the Court should not have granted certiorari. Because the Court did not analyze the good-faith exception to the exclusionary rule, a “favorable ruling” would not “provide [Chatrie] redress from the judgment below.” Thus, Justice Alito argued that the Court improperly issued an “advisory opinion.” Furthermore, because Google has since modified its Location History service in a way that “forecloses future use of this geofence procedure,” this is not a “compelling” case. Therefore, he said, this was an improper use of the Court’s certiorari docket. Justice Thomas joined this portion of the opinion.
Justice Alito (and Justice Barrett) then maintained that “apply[ing] the Fourth Amendment as understood for the first century of this Nation’s history, we would find no ‘search’ of Chatrie’s papers or effects, much less an ‘unreasonable’ one.” Like Justice Gorsuch, Justice Alito considered whether the Location History was one of Chatrie’s “own papers and effects.” But Justice Alito concluded that Chatrie did not have a property interest in the Location History. Further, even if Chatrie had a property right in the Location History files, his claim fails because police accessed “historical details” stored on Google’s servers, not the Location History files themselves. Justice Alito also noted that “Katz’s expansion of Fourth Amendment doctrine” was a “modest[] one,” as the Court moved quickly to “cabin [Katz’s] impact” after it was decided. And even under a Katz reasonable-expectation-of-privacy analysis, Chatrie’s claim fails because of the third-party doctrine. When Chatrie “voluntarily conveyed his location information to Google,” he “assumed the risk that Google might disclose location information to others, including the police.” As such, the police do not require a warrant “under [the Court’s] 20th-century” Fourth Amendment analysis. Justice Alito further argued that “duration, comprehensiveness, and voluntariness”—all relevant in Carpenter’s analysis—demonstrate “a far lesser privacy interest” in Chatrie’s case. Writing for himself, Justice Alito concluded that the Court’s decision “will unleash the very upheaval in Fourth Amendment law that Carpenter disclaimed” and expressed concerns about the “boundary between Carpenter and the third-party doctrine” in the digital age.
Justice Barrett filed a separate dissenting opinion. She said she “ha[s] no quarrel with Carpenter” or the grant of certiorari in the case. But she agreed with Justice Alito’s application of Fourth Amendment precedent, noting that Chatrie did not have a reasonable expectation of privacy in “his public movements that he voluntarily disclosed to Google.”
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel, Center for Supreme Court Advocacy
- Olivia D’Andrea, Law Clerk, NAAG
- Rebecca Eastham, Law Clerk, NAAG
- Riley Gamble, Law Clerk, NAAG
- Joshua Whitlock, Law Clerk, NAAG
The views and opinions of authors expressed in this newsletter do not necessarily state or reflect those of the National Association of Attorneys General (NAAG). This newsletter does not provide any legal advice and is not a substitute for the procurement of such services from a legal professional. NAAG does not endorse or recommend any commercial products, processes, or services. Any use and/or copies of the publication in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in the publications.
