A Few Somewhat Random Reactions to the Court’s Latest Term, Part One: Opportunistic Formalism

How bad was the latest US Supreme Court term?  Plenty bad, especially for anyone who cares at all about democracy or the rule of law.  There were a few relatively pleasant surprises, but even those cases (as I will demonstrate shortly) can have worrisome lead linings hiding inside.  But the truly awful decisions dominated the Court's output once again in 2025-26.

For readers looking for a relatively traditional "summary of the term"-style analysis, one could hardly do better than to click on Professor Dorf's recent "Is the Roberts Court Hyperopic or Willfully Blind?" (first posted on SCOTUSblog).  Because constitutional law has never been my day job or even my hobby, I am not pretending to be able -- or even inclined -- to offer that kind of overall assessment of the Court's work.  Instead, my approach here and in tomorrow's Part Two of this column will be eclectic, discussing a few notable points within cases that strike me as having been overlooked or underappreciated.

I should add that the usual ConLaw suspects at Dorf on Law have published deep analyses of most of the top cases of the term, including the rulings on independent federal agencies (with guest Eric Berger's additional analysis of the same case), anti-transgender laws, birthright citizenship, another insane Second Amendment case, Article III versus the Seventh Amendment, and Matthew Tokson's especially illuminating three-part response to a major Fourth Amendment privacy law ruling.  Anyone who wants to learn more about those cases will find plenty of reading material on this blog.

I will also not pretend to have a unifying theme here, so I will simply begin with the classic disclaimer "in no particular order." 

In no particular order: 

(1) A time bomb in the privacy case

We can start with Professor Tokson's excellent summary of that landmark Fourth Amendment case (Chatrie v. U.S.).  Already contradicting myself after saying that these reactions are in no particular order, I in fact begin here because the case was a rare instance in this sad term of a very good decision.  Unfortunately, however, the Court's analysis might not have the staying power for which one might hope.

To be clear, I agree with Professor Tokson's analysis in all respects, and his extensive discussion carefully walks us through how the 6-3 majority (but really a 5-4 majority on the important constitutional matters, because Neil Gorsuch's oddball analysis was rejected by all of the other eight justices, even as he concurred in the result) smartly rewrote privacy law for the smartphone age.

The case involved "geofencing," with a key issue being whether a standard opt-in screen on a cellphone app could be deemed to constitute a waiver of Fourth Amendment protections.  Professor Tokson explains that the Court's majority completely rejected the idea that clicking "yes" on a cellphone's permission screen was a voluntary waiver.  Happily, the majority took an approach wholly at odds with the usual contract formalism that legal conservatives use to justify tilting the playing field against weaker parties.

This was an especially welcome move in that the Court was willing at last to say that contracts of adhesion (form contracts) are inconsistent with the realities of life in a smartphone-centered world.  In Professor Tokson's words near the end of his second column:

The Court rejected these arguments in favor of a more holistic, common-sense view of the modern world. Perhaps Location History, or Google Maps itself, is not essential to life in today’s world. But this is far too narrow a view of how life works. Cellphone users use apps, if not Google Maps then another app, and in doing so they inevitably disclose personal information to service providers. This is the “price of conventional cell-phone usage,” and cellphone usage is a pervasive and insistent part of daily life. In this sense, the disclosure of location information to some company or another is not voluntary in any meaningful sense, and it is certainly not a waiver of a person’s constitutional rights. It’s the inevitable result of living in the modern world.

How could that not be good?  It is, yet I cannot help but think that a cynical response is also entirely realistic.  Professor Tokson added that "[t]he Court also correctly noted that Google’s permission screen did not inform users about virtually any aspect of its data collection and use."  I am not, of course, faulting Professor Tokson for this, because he is accurately and faithfully describing what the majority included in their opinion.  It is the mischief that such dicta can cause that worries me.

And to be clear, the quoted words truly are dicta.   Understood within the context of the overall opinion, it is merely an "oh, and by the way" kind of comment that could and should have been left out of the final draft.  Why?

Imagine that you are a lawyer for Google or any of the other oligarchs.  You look at that footnote, and what do you do now?  Even in light of the majority's entirely welcome (to the point of jaw-dropping) rejection of contract formalism in digital  "agreements," this is simply an invitation for the bad guys to grab onto that unnecessary dicta and say, "Well, the Chatrie decision said that we didn't provide information on our permission screens.  Guess what we just did?"

But again, one might push back at my pessimism and say that an ideologically mixed majority joined an opinion that, properly understood, should result in anyone looking at my hypo and responding: "Come on!  They essentially said that it didn't matter what was on the permission screen, because they surprised us all by admitting that clicking permission screens is not true permission in the relevant legal sense.  Get over it."  Why am I so stuck on this?  I will offer an anecdote and then a general observation.

I have not been able to track down the case, but the Supremes in the 1990's wrote a 9-0 decision on Fourth Amendment searches that included a two-justice concurring opinion.  That additional opinion offered a hypo that was not presented by the facts of the case, with the two justices suggesting that such a variation on the facts might -- might -- raise a more complicated issue at some point.  None of the other justices signed that concurrence.  Even so, I saw a district court judge soon thereafter ruling against a defendant on the basis that his facts were similar to those in that concurrence's hypo.  Even after being reminded that the controlling opinion did not carve out any exceptions, the judge insisted on ruling against the defendant.

An anecdote is an anecdote, and we can surely find many examples of judges misapplying case law much more egregiously than in this example.  Even so, seeing that example play out a quarter of a century ago has always stuck with me, precisely because the dicta was so flimsy yet served the judge's purpose of claiming not to be defying precedent.  And in Chatrie, it is the majority itself that signed onto the dicta, not merely a subset of those justices.  In a controlling opinion that was so well crafted, this stray footnote strikes me as sloppy at best, reckless at worst.

My general observation is that this Court in particular is not going to be welcoming to modernist arguments of the sort that the Chatrie majority adopted.  The conservative legal movement at its very foundation is opposed to realism, living constitutionalism, and all that.  The Chicago School's scorn fueled a backlash against Cardozo's contract modernism, and this Court's justices show no inclination to revisit any of that in even a casual sense.  They certainly have no problem with arbitration clauses, much less with coerced confessions.  Such a court is not to be trusted with any of this nonsense.

Even opinions that are seemingly huge wins can, therefore, invite bad-faith responses.  If I were a betting man (one who had somehow not already lost everything on prop bets), I would bet the house that that one sentence from Chatrie will be its (our) undoing.

In the larger scheme of things, however, even the worst-case version of how this case could unravel is nothing compared to what the six-justice majority has been doing to the country in its other rulings.

(2) Legalistic lawlessness in the "other' immigration case

Most of the focus among legal commentators on June 25 was on Mullin v. Doe, the horrendous decision in which the usual six suspects allowed the Trump Administration to remove so-called Temporary Protected Status (TPS) from black and brown people from shithole countries thousands of Syrians and hundreds of thousands of Haitians living in the US.  The Dorf on Law columns that I mentioned above by Professors Berger and Dorf both described just how bad that decision was.

A second case announced that day, however, is also worth thinking about for a moment.  As the American Immigration Council (the Council) explained, "Mullin v. Al Otro Lado, endorses a policy dating back to the last months of the Obama administration which [sic] permitted border officials to turn away asylum seekers arriving by land to ports of entry along the U.S.-Mexico border."  Recalling that President Obama was justifiably criticized at the time as the "deporter-in-chief," the seeming bipartisanship of the current Court's ruling is much less benign than it might seem at first glance.

In any event, the Council summarizes the predictable 6-3 opinion:

U.S. law provides that any person who is physically present in the United States or who “arrives in” the United States may apply for asylum. Congress further directed that immigration officers must “inspect” any noncitizen who “arrives in” the United States to determine if they should be admitted to the country — a function U.S. Customs and Border Protection (CBP) officers carry out thousands of times per day at ports of entry. ...

Today, the Supreme Court ... overturn[ed] a 9th Circuit decision which had found that CBP had an affirmative obligation to process people who arrive at ports of entry but who have not yet stepped on U.S. soil after CBP officers have blocked their passage. The Court found that there was a difference between “arrives in” and “arrives at” the border, and declared that only those individuals who have physically set foot in the United States have a right to be inspected and apply for asylum.

Judas Priest!!  Two of the justices who in Chatrie were seemingly so realistic about modern life and who were unwilling to go with the formalistic idea that clicking yes on a "permission screen" granted genuine permission returned to their dishonest roots and said with straight faces that so long as an agent can physically block a potential asylum seeker from putting a toe on US soil, the law requiring them to be processed does not apply.

As the dissenters wrote, their six benighted colleagues preposterously "bless[] the Executive Branch’s decision to slam the door shut on all who are fleeing persecution, despite the detailed inspection and asylum system that Congress enacted and commands."  Or more pointedly, the Court's now-openly MAGA supermajority allows a tendentious literalist interpretation of a word in a statute to negate the rest of the statute.  "We, Congress, are setting up a system by which potential asylees will be processed.  But because we wrote 'in' rather than 'at,' we obviously are allowing any president to ignore the whole thing."

Interestingly, this is another instance in which it feels like I have seen this movie before.  When I was clerking, one of the largest categories of cases was from federal prisoners who would file pro se petitions (that is, legal documents that the prisoners wrote on their own, not with the assistance of an attorney).  Although almost all such petitions were ultimately denied -- no matter the content, this being the US criminal justice system after all! -- every decision that we drafted cited the long-established requirement that pro se pleadings must be "liberally construed."

What does that mean, and why does it make sense?  In standard legal proceedings, with all sides represented by counsel, courts understandably hold advocates to very strict standards.  For an amusing recent example of this, note this anecdote in Professor Dorf's column yesterday:

I once wrote an amicus brief in support of the respondent in a Supreme Court case, with support from a law firm that agreed to print it. Under the Court's rules, the cover was supposed to be dark green. The firm produced a cover that was kinda sorta dark green but also kinda sorta brown--and also, weirdly speckled. The firm filed the brief without showing me the cover first. The clerk rejected it as not sufficiently green. Luckily, there was still time to re-file with a different, more conventionally dark green cover.

Again, one can see why courts would be extremely picky about such things, because of course every exception runs the risk of opening the floodgates to more and more deviations from standard protocols.  All very sensible.  By contrast, in pro se cases, and especially where the pro se litigant is in prison, no reasonable person could countenance summary denials of submissions that did not meet every requirement of a court's rules of procedure.

But there are, of course, unreasonable people out there, many of them in judicial robes.  In one case, a judge in my circuit floated an opinion in which he wanted to deny a pro se litigant's request on the most technical of grounds.  When the other judges (most likely wondering whether their colleague had been smoking something) pointed to the "pleadings must be liberally construed" standard, the undaunted judge (a Bill Clinton appointee, by the way) replied in essence: "Aha, but that only applies to pleadings, and they aren't pleadings until they've been accepted by the clerk of court.  The clerk, in turn, is required to turn back all submissions that are not jot-and-tittle perfect!"

Again, the other judges in that case had no intention of actually granting a federal prisoner the relief sought.  God forbid.  This guy, however, made it clear that he was tired of even pretending to take the pro se petitions seriously.

The column by Professor Dorf from which I quoted just above ended with an excellent discussion of legal analogies, and he showed that there are often difficult calls when drawing analogies.  Here, however, there is no difficulty.  A Tenth Circuit judge says, "I don't have to give these weak people any respect, because I can redefine 'pleadings' in a way that erases the minimal protections provided by the law."  And now six Supreme Court justices say: "We don't have to give those weak people any respect, because we can redefine 'in' absurdly to make it impossible for any of those weak people to receive any protections provided by law."

In the end, then, both a good outcome (Chatrie) and a terrible one (Al Otro Lado) provide windows into the ways in which being unrealistic sticklers can -- and too often does -- allow courts to strip rights from the least powerful people in society.  With this Supreme Court majority, we can expect more of the latter (already bad) and fewer of the former (only potentially bad) cases in the future

I will add some thoughts on other recent cases in Part Two tomorrow.

- Neil H. Buchanan