Tuesday round-up

By on Sep 19, 2017 at 7:08 am

In The National Law Journal (subscription or registration required), Tony Mauro highlights an amicus brief filed “on behalf of a group of ‘cake artists’ across the country” in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which stems from a baker’s refusal to create a wedding cake for a same-sex couple; the brief “contains roughly three dozen photos of luscious wedding and other special-occasion cakes, ranging from one that looks like a silver pot brimming with crawfish waiting to be boiled, to a ‘Pistol Pete’ cake for a couple who first met at Oklahoma State University.” Garrett Epps discusses the case at The Atlantic, observing that the federal government, in its amicus brief filed in support of the baker relying on the First Amendment’s speech clause, “asks [for] a constitutional exemption to civil-rights laws regardless of the underlying motive.” At Dorf on Law, Eric Segall argues that the baker’s “speech claims cannot be satisfactorily resolved on the present record, and therefore the Court should not resolve [them].”

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Petition of the day

By on Sep 18, 2017 at 8:20 pm

The petition of the day is:

17-270
Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue: Whether, under the Speedy Trial Act, time engaged in a plea negotiation that does not result in a finalized plea agreement is automatically excludable as “other proceedings concerning the defendant” under 18 U.S.C. § 3161(h)(1), as four circuits hold; or whether such time is excludable only if the district court makes case-specific “ends of justice” findings under 18 U.S.C. § 3161(h)(7), as four other circuits hold.

 
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Monday round-up

By on Sep 18, 2017 at 7:27 am

The challenge to President Donald Trump’s March executive order on immigration continues to generate headlines. At CNN, Ariane de Vogue reports that although “[t]he Supreme Court is poised to hear oral arguments in the travel ban case early next month,” in Trump v. International Refugee Assistance Project, “that doesn’t actually mean justices will ever decide the legality of [the] controversial executive order,” and that “[m]uch depends on what the White House decides to do.” In The Economist, Steven Mazie suggests that “[l]ess than a month before the Supreme Court considers the legality of his executive order barring travel from six overwhelmingly Muslim countries,” Trump’s tweets reacting to a London bombing last week “handed a gift to those challenging the ban.”

Briefly:

  • At Reuters, Andrew Chung reports on the upcoming term’s high-profile partisan-gerrymandering case, Gill v. Whitford, noting that the political practice of “manipulating the boundaries of legislative districts to help one party tighten its grip on power” is “nearly as old as the United States,” “and one the Supreme Court has never curbed.”
  • In The New York Times, Adam Liptak talks to the baker and the same-sex couple whose dispute over the baker’s refusal to create a cake to celebrate the couple’s wedding constitutes “another battle in the culture wars,” culminating in a high-profile Supreme Court case, Masterpiece Cakeshop v. Colorado Civil Rights Commission.
  • At Opinio Juris, Heather Cohen looks at Jesner v. Arab Bank PLC, in which the Supreme Court will decide whether corporations can be held liable under the Alien Tort Statute for violations of international law, arguing that if the court answers no to that question, “it will be overturning hundreds of years of legal tradition, as well as undermining the chosen words and understanding of the drafters of the Constitution.”

We rely on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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Petition of the day

By on Sep 15, 2017 at 8:20 pm

The petition of the day is:

17-209

Issue: Whether statutes of this kind, which criminalize any sexually related speech sent to a minor electronically with the intent to arouse, satisfy First Amendment scrutiny.

Richard W. Garnett is the Paul J. Schierl / Fort Howard Corporation Professor of Law at the University of Notre Dame. He joined an amicus brief with 33 other legal scholars in support of the cakeshop in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

It is striking how easy it has become for a person to stumble into the status of a symbol – or, these days, a viral meme. Jack Phillips is, or was until fairly recently, a skilled cake artist with a small business, Masterpiece Cakeshop, in suburban Denver. Today, he is a litigant in the Supreme Court of the United States and regarded by many as embodying the tension – increasingly, the conflict – between religious conscience and equality.

Phillips regards himself, justifiably, as an artist. He is resolved to living out his vocation as an artist in a way that reflects and respects his Christian commitments. In keeping with his understanding of those commitments, he declined to accept a commission to create a custom wedding cake for two men, Charlie Craig and David Mullins, who were planning a celebration of their wedding.

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Early this week, the Supreme Court – over the dissent of the court’s four more liberal justices – granted Texas’ request to put on hold two lower-court orders that had invalidated two of the state’s federal congressional districts and the state’s maps for the lower house of the Texas legislature. The two courts’ orders had directed Texas Governor Greg Abbott to decide quickly whether to call a special session of the legislature, while also indicating that the state should be prepared to redraw the existing maps this month. Tuesday night’s orders put those rulings on hold. Today the challengers in the case, who prevailed in the lower courts, agreed with the state that the Supreme Court should treat the state’s filings as requests to weigh in on the merits of the two rulings, and they asked the justices to speed up their consideration of those requests.

In a short letter addressed to Scott Harris, the clerk of the Supreme Court, the challengers explain that the court’s disposition of the two cases will have a significant impact: It “will determine the district boundaries for the 2018 congressional and state elections.” If they prevail, the challengers continue, “remedial proceedings will be required on remand, and the State will be required to conduct primary elections under the district lines that result from those proceedings. To minimize the disruption those proceedings may have on the 2018 Texas election calendar,” the challengers conclude, they “agree with the State that the Court’s consideration of these appeals should be expedited.”

The challengers propose a briefing schedule that would allow the justices to consider the two cases at their January 5, 2018, conference. If the court were to grant the state’s request for review, the cases could be argued in the spring of 2018, with a decision on the merits by the end of June.

This post was originally published at Howe on the Court.

 
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Event Announcement

By on Sep 15, 2017 at 2:14 pm

On September 29 at 12 p.m., the Pacific Legal Foundation and National Review Institute will host an event titled “The Consequential Cases in the Supreme Court’s 2017-2018 Term.” Speakers include Michael Carvin, John Elwood and Donald Verrilli, Jr.; Ramesh Ponnuru will serve as moderator. More information about the event can be found on the Foundation’s website and Eventbrite.

 
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Mary L. Bonauto is the Civil Rights Project Director at GLBTQ Legal Advocates & Defenders.

This case is not really about a cake. It is about equal citizenship of gay people, and whether we may engage in the kinds of ordinary transactions others take for granted in the commercial marketplace and beyond. Will moral objections to who we are and whom we love be accorded constitutional supremacy over ordinary human decency, over the Golden Rule, over the long-standing American rule of businesses dealing with all comers? Will these objections justify closing the door on LGBT people and, once again, marking them – including the youth who had begun to hope that they could live a full life – as outcasts and inviting further discrimination?

To circumvent the demands of equality, both Masterpiece Cakeshop and the Department of Justice as amicus seek to draw new constitutional lines about speech in the marketplace – either as “pure speech” or “expressive conduct” – because of the personal creativity that can be involved in making products for sale or providing services. A wedding cake is “not an ordinary baked good; its function is more communicative and artistic than utilitarian,” the government writes.

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Friday round-up

By on Sep 15, 2017 at 7:17 am

At his eponymous blog, Lyle Denniston looks at the factors that may underlie the Supreme Court’s one-sentence order on Wednesday denying a request to expedite review of a partisan-gerrymandering case from Maryland, Benisek v. Lamone. Additional coverage of the court’s order in Benisek comes from Steve Lash in The Daily Record.

In an op-ed at Bloomberg View, Noah Feldman discusses Masterpiece Cakeshop v. Colorado Civil Rights Commission, which asks whether the First Amendment prevents a state from requiring a baker to create a wedding cake for a same-sex couple, maintaining that “it would be a fundamental mistake for the court to hold that the baker’s artistry exempts them from anti-discrimination law.” At his eponymous blog, Ed Mannino suggests some approaches that would enable the court to “craft[] a narrow opinion which will garner the greatest number of justices [to] join it,” while at Casetext, David Boyle looks for a “‘compromise’ solution to the Masterpiece problem.” The editorial board of The Washington Post also weighs in on the case, arguing that “there is little reason to believe that wedding guests would attribute to the cake baker an endorsement of the festivities as a whole — or that a reasonable guest might believe that of the baker rather than of the wedding hairdresser, the caterer or the hotel providing the venue.”

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Petition of the day

By on Sep 14, 2017 at 8:20 pm

The petition of the day is:

17-212

Issue: Whether completely severing ties with an organization engaged in a conspiracy constitutes “affirmative action . . . to disavow or defeat the purpose” of the conspiracy that establishes withdrawal from the conspiracy.

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