This morning the justices added two new cases to their merits docket for next term, but once again they did not act on perhaps the most closely watched case on their cert docket – a challenge by a Colorado man who objects to having to create cakes for same-sex weddings.

Today’s two grants involve very different issues: whether corporations can be sued by noncitizens in U.S. courts for violations of international law and the standard for receiving federal funds to assist a death-row inmate in his federal post-conviction proceedings.

The Alien Tort Statute, a law enacted in 1789, gives federal district courts jurisdiction over civil lawsuits filed by non-U.S. citizens for wrongful acts that violate international law. Although the law was rarely used in its first two centuries, in recent decades victims of human rights violations have tried to rely on it to hold both individuals and corporations liable. Nearly six years ago, the Supreme Court granted review to resolve the question of corporate liability in Kiobel v. Royal Dutch Petroleum, but it ultimately resolved that case on another ground, holding that the ATS does not apply to violations that occur outside the United States.

In Jesner v. Arab Bank, the justices will now consider the corporate liability issue again. The plaintiffs in the case are the victims of terrorist attacks in Israel, the West Bank and Gaza. They sued Arab Bank, a Jordanian-based bank with offices in New York, alleging that it played a role in financing terrorism through its activities in New York. The lower courts threw out the victims’ lawsuits. They pointed to the U.S. Court of Appeals for the 2nd Circuit’s earlier decision in Kiobel, which had interpreted the ATS to bar lawsuits against corporations. The justices are likely to hear oral argument in the case next fall; their decision could be significant not only in lawsuits alleging corporate connections to terrorism, but also in lawsuits contending that corporations are more broadly responsible for human rights violations and environmental abuses.

The second case granted today was filed by Carlos Manuel Ayestas, who was sentenced to death in Texas in 1997. After his efforts to overturn his sentence in state court were unsuccessful, Ayestas went to federal court, where he argued that his earlier lawyers had not provided him with the adequate representation that the Constitution guarantees. He filed a motion seeking funds to hire a specialist to conduct the investigation that, he said, his prior lawyers should have conducted as part of their efforts to secure a life sentence in place of the death penalty.

The lower courts turned Ayestas down. The federal law governing the grant of such funds requires the trial court to find that the services the defendant seeks are “reasonably necessary for the representation of the defendant.” That, the lower courts ruled, requires a defendant to show “a substantial need,” which – Ayestas says – in turn essentially requires him to demonstrate that he could prevail even though he hasn’t yet had a full opportunity to develop the facts sufficiently to make that showing. Ayestas characterizes the U.S. Court of Appeals for the 5th Circuit’s rule as imposing a “logical circularity” that “starves meritorious” claims of the resources that defendants need.

The justices have now considered the petition for review in Masterpiece Cakeshop v. Colorado Civil Rights Commission at five consecutive conferences without acting on it. The custom-cake business owned by Jack Phillips, who describes himself as a “cake artist,” argues that Colorado’s public accommodations law violates the First Amendment by requiring Phillips to create custom wedding cakes for same-sex weddings, in violation of his religious beliefs. As is their practice, the justices have not explained why they have not yet ruled on Phillips’ petition. The electronic docket for the case has not yet been updated, but if – as expected – the case is once again scheduled for consideration at the justices’ next conference, on April 13, we could hear something on Monday, April 17.

Posted in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Jesner v. Arab Bank, PLC, Ayestas v. Davis, Cases in the Pipeline, Featured, Merits Cases

Recommended Citation: Amy Howe, Two grants, still no Masterpiece Cakeshop (again), SCOTUSblog (Apr. 3, 2017, 12:15 PM), http://www.scotusblog.com/2017/04/two-grants-still-no-masterpiece-cakeshop/