The petition of the day is:

At the American Constitution Society’s National Convention today, Justice Sonia Sotomayor promoted a new hiring plan for federal law clerks.

Sotomayor promised to “raise an eyebrow and act accordingly” if she receives applications that don’t follow the plan, which sets a schedule for clerk hiring after a law student’s second year and eliminates “exploding” clerkship offers. Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan have also voiced support for the plan.

An ad hoc committee on law clerk hiring, comprised of Chief Judges Merrick Garland, Robert Katzmann, Sidney Thomas and Diane Wood, proposed the plan after a letter signed by more than 100 law school deans indicated that the present practice, in which students are hired for clerkships after their first year, “altered the first-year experience, raised important distributional concerns, and undermined our faculties’ ability to provide judges with the information they need to make wise hiring choices.”

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The Federal Judiciary Workplace Conduct Working Group this week published a final report and executive summary for the Judicial Conference of the United States that examines the procedures to protect the judiciary’s 30,000 employees from inappropriate conduct in the workplace. The working group, comprised of eight federal judges and court administrators, found that “inappropriate conduct, although not pervasive within the Judiciary, is not limited to a few isolated instances.”

“There is room for improvement in terms of both accessibility and transparency,” the report summary continued, “but the most significant challenge to accountability lies in the understandable reluctance of victims, especially law clerks and other temporary employees, to report misconduct.”

The working group, formed at the request of Chief Justice John Roberts, made recommendations that fell into three categories – codes of conduct and guidance documents, procedures for identifying and correcting misconduct, and education and training programs. These proposals all require action by the Judicial Conference, the Administrative Office of the U.S. Courts or the Federal Judicial Center.

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At Take Care (cross-posted at The George Washington Law Review’s On the Docket blog), Robert Tuttle and Ira Lupu weigh in on Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court ruled on Monday in favor of a Christian baker who refused to make a cake for a same-sex wedding, arguing that “a system that threatens to overturn any administrative decision that appears tainted – even harmlessly – by signs of religious bias is one that will inevitably favor religious interests over other, competing concerns,” and that “when such a system is especially sensitive to slights against conservative Christians but not others, it is constitutionally corrupt.” At Mother Jones, Stephanie Mencimer contends that the court “wanted a way to rule narrowly in favor of [the] Colorado baker,” and  “seems to have found the answer to its conundrum in a stunt pulled by a religious-right activist,” “illustrat[ing] the extent to which Christian legal organizations are influencing the law, all the way to the Supreme Court.” At Commentary, Sohrab Ahmari “wonder[s] whether religious freedom, without more, suffices to protect faith and tradition in the public square,” asserting that “religious conservatives should also go on the offensive and once more formulate a substantive politics of the common good.” Additional commentary comes from Counting to 5 (podcast) and from Kristin Waggoner at PoliZette, who asserts that “despite what some might say,” “other artists who share [the baker]’s religious beliefs about marriage will also benefit from the court’s decision.”

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The petition of the day is:

It seems out of a script by the writers of the film “Groundhog Day.” At the end of the term each year, court-watchers await the impending retirement of a justice. Stories break in the months before June trying to sort through the imperfect information concerning such retirement plans. In recent years, speculation of an impending retirement has surrounded several justices, including Ruth Bader Ginsburg, Clarence Thomas and, most notably, Anthony Kennedy. With rumors swirling around the possibility of Kennedy retiring at the end of the term, this post examined the likelihood of such a move. Pieces like these raise the specter of a retirement, but generally do not examine the potential implications of such a decision. This present post uses data through the 2016 term to look at the justices’ voting pairs and how they might shift if Kennedy does retire at the end of the term. (Justice Neil Gorsuch is removed from the analyses due to too few observations.)

The setting

The battle lines have been drawn. At least Senate Majority Leader Mitch McConnell, Republican of Kentucky, would like to think they have. With the failed nomination of Chief Judge Merrick Garland to the Supreme Court and Gorsuch’s subsequent nomination and confirmation, the Supreme Court’s conservative majority remained intact after the passing of Justice Antonin Scalia. This majority, however, is not always steadfast. Kennedy, whose choices affect the outcomes of more closely contested Supreme Court decisions than any of the other justices on the court (for support for this characterization see pages 27-30 of my article “Reframing the Confirmation Debate”), is hardly predictable. Sometimes on the left and other times on the right, he has written some of the most important majority opinions on the recent court.

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Dariely Rodriguez is the director of the Economic Justice Project of the Lawyers’ Committee for Civil Rights Under Law, which submitted an amicus brief in this important case on behalf of a broad coalition of civil rights organizations.

Over the last several decades, public accommodation laws have played a critical role in ensuring that all businesses are open to everyone on a nondiscriminatory basis and that individuals from marginalized communities are not treated like second-class citizens. Despite the advances our country has made in eradicating segregation and other forms of invidious discrimination, African-Americans and other minority communities, including LGBT people of color, continue to suffer from structural and pervasive discrimination, as evidenced by the recent increase in hate crimes across the country. Highly charged incidents at Starbucks, golf courses, hotels and other sites make clear that discrimination by places of public accommodation remains widespread.

This week, the Supreme Court handed down a much-anticipated decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The 7-2 ruling handed a narrow victory to the cakeshop by finding that its owner did not receive a fair and impartial tribunal hearing. The Supreme Court pointed to factual evidence that the majority believed reflected bias on part of the commission against the cakeshop owner’s claims. Additionally, the court upheld the general principle that business owners cannot rely on religious or philosophical objections to discriminate against protected individuals, including LGBT individuals, in violation of applicable public accommodation laws and largely avoided the thornier constitutional arguments raised by the baker, Jack Phillips. However, by reversing the Colorado Civil Rights Commission’s ruling, the court missed an opportunity to unequivocally condemn the pervasive discrimination and indignity that Charlie Craig, David Mullins and countless other LGBT individuals face in public accommodations.

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Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court ruled Monday in favor of a Christian baker who refused to make a cake for a same-sex wedding, stays front and center. For The New York Times, Julie Turkewitz reports that a Colorado celebration for “the cake baker’s fans, … [t]here were balloons and Bible verses, and also misgivings: In a nation that has moved so far in the direction of gay rights in recent years, it wasn’t clear if Mr. Phillips’s victory would mean much for long.” At the Washington Post’s Monkey Cage blog, John Sides questions a law professor about the “political impact” of the decision.

At First Things, Hadley Arkes maintains that after Masterpiece, “[t]he local authorities will still be able to force Catholic institutions out of business if they will not place children for adoption with same-sex couples, or cover those couples in their medical insurance”; “[t]hey will just have to be nice while they’re doing it.” Linda Greenhouse worries in an op-ed for The New York Times that “the Supreme Court has imposed a regime of constitutional political correctness on how we talk about religion.” In an op-ed for The Guardian, Joshua Matz highlights “three features of [Justice Anthony] Kennedy’s opinion that should be celebrated by progressives and members of the LGBTQ community.” Additional commentary comes from Kristin Waggoner in an op-ed for The Washington Post, Chris Potts in an op-ed for CNS News, and James Gottry in an op-ed at The Daily Wire, who maintains that the court “left itself ample room, in future cases, to protect the constitutional freedoms of all Americans.”

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The petition of the day is:

Issue: Whether the U.S. Court of Appeals for the 9th Circuit, in conflict with the decisions of the Supreme Court and other courts, properly held that the Treaty of Olympia’s grant of a “right of taking fish” to the Quileute Indian Tribe and Quinault Indian Nation includes a right of whaling and sealing, and extends beyond areas in which the Tribes customarily fished to areas in which they hunted “marine mammals—including whales and fur seals,” effectively extending the Tribes’ fishing rights by 2,400 square miles.

In its conference of June 7, 2018, the court will consider petitions involving issues such as whether the district court had jurisdiction to consider challenges to the new districting plan the North Carolina General Assembly enacted after North Carolina’s previous state districting plan was invalidated as a racial gerrymander; whether the lower court improperly departed from the Supreme Court’s decisions in Graham v. Connor and Plumhoff v. Rickard when it denied qualified immunity based on the absence of a constitutional violation given that the undisputed facts established that the petitioner acted reasonably in responding to the threat of a suspect turning towards him while raising the barrel of what appeared to be an assault rifle; and whether standards of decency have evolved to render the execution of a defendant prosecuted as a principal to first degree murder unconstitutional when, as the state conceded, jurors could not know who inflicted the blows that caused the victim’s death. Continue reading »