Recent Supreme Court decisions have highlighted several concurring opinions that could reshape constitutional doctrine if they gain future acceptance.
Justice Kagan’s view on content‑based speech restrictions
In Chiles v. Salazar, the Court applied strict scrutiny to a Colorado law banning conversion therapy for LGBTQ youth, finding the statute to be a content‑based restriction. Justice Neil Gorsuch wrote the majority opinion, describing the law as targeting expression that seeks to change a minor’s sexual orientation or gender identity.
Justice Elena Kagan filed a concurring opinion, joined by Justice Sonia Sotomayor. She noted that a hypothetical Colorado statute that was content‑based yet viewpoint‑neutral would raise a “different and more difficult question.” Kagan’s view rests on the distinction between subject‑matter restrictions, which regulate speech based on its topic, and viewpoint restrictions, which target a particular perspective. Under current precedent, both forms trigger strict scrutiny.
She referenced Carey v. Brown (1980), where the Court struck down a Chicago ordinance that allowed only labor‑related picketing in residential areas, emphasizing that regulations must be subject‑matter neutral unless they meet the highest level of review. The 2000 case United States v. Playboy Entertainment Group, Inc. was also cited, illustrating that a law focusing solely on sexual content required strict scrutiny.
If the hypothetical were adopted, the Court might limit strict scrutiny to viewpoint restrictions alone, potentially easing the burden on laws that regulate speech by subject matter. That shift could affect a wide range of statutes, from advertising regulations to public health messaging.
Justice Gorsuch challenges the “reasonable expectation” test
In Chatrie v. United States, the majority concluded that police use of a geofence—a method that captures location data from all cell phones in a defined area—constitutes a search under the Fourth Amendment because it invades a reasonable expectation of privacy. Justice Neil Gorsuch concurred in the judgment but offered a starkly different analytical framework.
Gorsuch argued that the Katz test, which hinges on a “reasonable expectation of privacy,” lacks constitutional grounding. He suggested that the Fourth Amendment should be interpreted to protect a person’s “effects,” a term historically understood to encompass personal property. Under that view, location history would be treated as a tangible effect, making its acquisition a search.
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Adopting his approach would overturn more than six decades of precedent, potentially narrowing privacy protections. Activities such as drone surveillance or monitoring of utility pole cameras might no longer be deemed searches, even though they intrude on personal privacy. The shift would create a legal environment where privacy is judged by property concepts rather than subjective expectations.
Justice Thomas pushes for a sweeping rollback of federal authority
Justice Clarence Thomas issued a concurring opinion in Monsanto Co. v. Durnell, a case involving preemption of state tort claims under the Federal Insecticide, Fungicide, and Rodenticide Act. While the majority held that the federal statute preempted state liability, Thomas raised three separate arguments that would dramatically alter federal law.
First, he questioned whether the Act exceeded Congress’s Commerce Clause power, suggesting that regulating agriculture and manufacturing falls outside the scope of interstate commerce. This stance echoes early‑20th‑century jurisprudence that limited federal regulatory reach.
Second, Thomas warned that the statute implicates an unconstitutional delegation of legislative authority to the EPA, a claim that, if upheld, could jeopardize numerous federal regulations dating back to 1935.
Third, he asserted that agency‑based preemption of state law should be disallowed, challenging a long‑standing principle that federal agencies can preempt state regulations when authorized by Congress.
These arguments could unsettle the foundation of many federal statutes and may lead to a resurgence of state‑level regulation across a spectrum of issues.
Courts may be hesitant to adopt such radical reinterpretations.
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