Supreme Court Justices Issue Concurring Opinions Proposing Legal Shifts

Why it matters locally: Justice Thomas's arguments questioning Congress's authority under the Commerce Clause for manufacturing and agriculture, and the ability to delegate power to the Environmental Protection Agency (EPA) and for agency regulations to preempt state law, could significantly impact Ohio's substantial manufacturing and agricultural sectors. Ohio has a diverse manufacturing base and a robust agricultural industry, both of which are currently subject to federal regulations under the Commerce Clause and EPA oversight.

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WASHINGTON – This Supreme Court term included several notable concurring opinions from justices, which, in some instances, suggested significant shifts in legal interpretation. Justice Clarence Thomas, in his concurring opinion in *Mullin v. Doe*, argued the Equal Protection Clause does not apply to the federal government. He stated that the 1954 ruling in *Bolling v. Sharpe*, which concluded otherwise, was incorrectly decided. In *Monsanto Co. v. Durnell*, Thomas also raised three arguments that would alter existing law. He questioned whether the Federal Insecticide, Fungicide, and Rodenticide Act exceeded Congress's authority under the Commerce Clause, a power he said permits regulation of inter-state selling, buying, and bartering but not manufacturing or agriculture. Thomas also questioned Congress's ability to delegate legislative power to the Environmental Protection Agency and argued agency regulations should not have the authority to preempt state law. Justice Elena Kagan, joined by Justice Sonia Sotomayor, issued a concurring opinion in *Chiles v. Salazar*. The Court, in an opinion by Justice Neil Gorsuch, ruled that a Colorado law prohibiting conversion therapy for LGBTQ+ youth constituted a content-based restriction on speech and discriminated against a counselor. This ruling applied strict scrutiny, the most stringent standard of court review. Kagan stated she would not have applied strict scrutiny if the Colorado law had been a subject-matter restriction rather than a viewpoint restriction. Current law dictates that both subject-matter and viewpoint restrictions on speech are content-based and must meet strict scrutiny. In *Chatrie v. United States*, Justice Gorsuch wrote a concurring opinion criticizing the 'reasonable expectation of privacy' test, which has determined whether a police action constitutes a Fourth Amendment search since the 1966 *Katz v. United States* decision. The Court's majority opinion, written by Justice Kagan, concluded police use of a geofence constitutes a search because it infringes on individuals' reasonable expectation of privacy regarding cellular device location data. Gorsuch argued the Fourth Amendment protects a person's 'effects,' and obtaining location history constitutes an intrusion into personal property, thus qualifying as a search. Justice Brett Kavanaugh's concurrence in *Trump v. Barbara* also drew attention. While the Court's majority, led by Chief Justice John Roberts, declared President Donald Trump's executive order limiting birthright citizenship unconstitutional, Kavanaugh stated he would have found the executive order constitutional but invalid based on statutory grounds. Kavanaugh's discussion in *Barbara* stated constitutional principles must apply to modern situations unknown to the framers, even if original principles remain unchanged without amendment. He concluded the Trump executive order was constitutional but violated a federal statute.