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Just a few hours after it put an order by the U.S. Court of Appeals for the 9th Circuit on hold in the litigation over President Donald Trump’s “travel ban,” the Supreme Court blocked two more lower-court orders, which had invalidated two of Texas’ federal congressional districts and the state’s maps for the lower house of the Texas legislature. The lower courts’ original orders, issued last month, had given the Texas governor three days to decide whether to call a special session of the legislature, and it directed the state to be ready to redraw the maps by early September. Tonight’s rulings by the Supreme Court put those orders on hold to give the state time to file its appeals; they will remain on hold until the justices rule on those appeals.

Texas’ request had gone first to Justice Samuel Alito, who – acting alone – temporarily blocked the lower-court rulings while the challengers responded to the state’s requests. Those responses were due last week. But once the briefing on the stay requests was finished, Alito referred the disputes to the full court, which acted tonight. Unlike tonight’s order in the travel ban case, four justices noted their disagreement with the court’s orders in the federal congressional and Texas House cases: Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan indicated that they would have denied the state’s applications.

This post was originally published at Howe on the Court.

Petition of the day

By on Sep 12, 2017 at 8:20 pm

The petition of the day is:

17-130

Issue: Whether administrative law judges of the Securities and Exchange Commission are officers of the United States within the meaning of the appointments clause.

At least for now, the federal government will be able to rely on President Donald Trump’s March 6 executive order, often known as the “travel ban,” to bar nearly 24,000 refugees from entering the country. In late June, the Supreme Court allowed most of the order – which froze the issuance of visas for travelers from six Muslim-majority countries and suspended travel by refugees into the United States – to go into effect. But it did not disturb the part of the lower-court rulings that prohibited the government from enforcing the ban with regard to the named plaintiffs in the case and other foreign nationals who have a “credible claim of a bona fide relationship with a person or entity in the United States.” Today the justices blocked a later ruling by the U.S. Court of Appeals for the 9th Circuit that interpreted the category of refugees who are eligible to enter the country more expansively than the government would have liked. For the foreseeable future, and possibly until the Supreme Court can rule on the broader dispute, refugees will not be exempt from the travel ban if their only connection with the United States is an agreement between the federal government and a refugee resettlement agency for the agency to provide the refugees with assistance after their arrival in the United States.

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Vanita Gupta is the president and CEO of The Leadership Conference on Civil and Human Rights.

More than five decades ago, our country wrestled with the issue of whether businesses open to the public should be open to everyone on the same terms, regardless of their race. Among other reasons offered at the time for perpetuating the wholesale exclusion of African-Americans from restaurants, movie theaters and hotels was the importance of sincerely held religious views: the conviction, by some, that their religious faith prohibited mixing of the races. In the Civil Rights Act of 1964, Congress resolved that debate in favor of rectifying “the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.”

On that principle, there ought to be no question that Colorado’s law allowing Charlie Craig and David Mullins to buy a wedding cake from any bakery they choose – notwithstanding that they are gay – should trump claims by a bakery that providing the cake would violate the owner’s religious beliefs. Yet that is the question the Supreme Court will take up this term in Masterpiece Cakeshop v. Colorado Civil Rights Commission.

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Event announcements

By on Sep 12, 2017 at 11:39 am

On September 19 at 12 p.m., the Heritage Foundation will host a preview of the upcoming Supreme Court Term. Speakers will include Paul Clement and Pratik Shah; the discussion will be moderated by Elizabeth Slattery. More information about the event, which will be live-streamed, can be found at the foundation’s website.

In addition, on September 27, from 12 pm to 2 pm, the Federalist Society will host a panel entitled, “Supreme Court Preview Panel: What is in Store for October Term 2017?” Panelists will include Kyle Duncan, Samuel Estreicher, Orin Kerr, Andrew Pincus and Carrie Severino; Jan Crawford will serve as moderator. More information about the panel, which will be live-streamed, is available at the Society’s website.

 
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The state of Hawaii fired back this morning, urging the Supreme Court to stay out of the most recent skirmish in the battle over President Donald Trump’s March 6 executive order, often known as the “travel ban.” Yesterday the Trump administration went to the justices to ask them to block a ruling by the U.S. Court of Appeals for the 9th Circuit that would have carved out an exemption from the ban for the approximately 24,000 refugees who are covered by an agreement between a refugee resettlement agency and the U.S. government. Justice Anthony Kennedy, who handles emergency appeals from the 9th Circuit, quickly acquiesced to the federal government’s request, at least temporarily, and directed the challengers to respond.

In today’s 32-page filing, Hawaii describes the current dispute as a “highly fact-intensive scenario” in which the Supreme Court would not normally get involved. In its June 26 order allowing part of the ban to go into effect, the state explains, the Supreme Court “laid out a legal standard” that the lower courts have “diligently and correctly applied,” removing any need for the justices to intervene.

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Mithun Mansinghani serves as solicitor general for the state of Oklahoma. Michael K. Velchik and Zach West, assistant solicitors general, also contributed to this article. The state of Oklahoma, through Attorney General Mike Hunter, joined a 20-state amicus brief led by the state of Texas in support of the petitioners, a bakery corporation and its owner, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

Gay marriage has been one of the most significant cultural issues of the past several decades. At one time, the majority of voters in many states held the view that legal marriage should only encompass relationships between one man and one woman, and they enacted laws forbidding state recognition of same-sex weddings. In Obergefell v. Hodges, the Supreme Court invalidated those laws, ruling that those who hold the traditional view of marriage cannot codify that belief into law and force those on the other side of the cultural debate to abide by it. Today, most Americans support legal recognition of same-sex marriage. The question in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is whether the logic of Obergefell applies now that the majority view has changed: Can those who support same-sex marriage codify their view into the law and force the new cultural minority to participate in same-sex weddings?

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Tuesday round-up

By on Sep 12, 2017 at 7:13 am

Justice Anthony Kennedy yesterday put a temporary hold on a lower-court order that would have exempted up to 24,000 refugees from the government’s entry ban; the stay will remain in effect until the entry-ban challengers have responded to the Justice Department’s appeal of the order and Kennedy or the full Supreme Court issues a further ruling on the matter. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Additional coverage comes from Adam Liptak in The New York Times, Ariane de Vogue at CNN, Matt Zapotosky in The Washington Post, Chris Geidner at BuzzFeed, Josh Gerstein at Politico, Lyle Denniston at his eponymous blog, Laurie Asseo at Bloomberg, and Lawrence Hurley at Reuters. Richard Wolf at USA Today reports that the battle over the entry ban escalated on another front as well yesterday, as lawyers for immigrant rights groups filed a brief on the merits of the case, telling “the justices that the temporary travel ban’s intent is to block Muslims from entering the United States, which violates the Constitution.”

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Petition of the day

By on Sep 11, 2017 at 8:20 pm

The petition of the day is:

16-1446

Issue: Whether state law may override Congress’s definition of patient safety work product by deeming healthcare information to be “collected, maintained, or developed separately” from the federal patient-safety system in which it resides.

In late June, the Supreme Court agreed to review decisions by two lower courts blocking the Trump administration from implementing the president’s March 6 executive order. That order, often known as the “travel ban,” put a freeze on new visas for travelers from six Muslim-majority countries – Syria, Sudan, Somalia, Libya, Iran and Yemen – and suspended travel by refugees into the United States. The justices allowed the Trump administration to put part of the ban into effect while the government’s appeals are pending, but that did not settle the matter entirely. Instead, the two sides in the dispute have continued to litigate exactly how broadly the ban applies. That litigation returned to the Supreme Court again today, as the Trump administration asked the justices to put a later lower-court ruling – on which refugees qualify for an exemption from the ban – on hold. Justice Anthony Kennedy, who handles emergency appeals from the U.S. Court of Appeals for the 9th Circuit, acted quickly on the government’s request: This afternoon he stayed the lower court’s ruling and ordered the challengers to respond by noon tomorrow.

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