Today at 11 a.m. (available by live stream), the Heritage Foundation will review yesterday’s oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. Speakers will include one of the oral advocates, Kristen Waggoner, and two authors of amicus briefs in the case, Ilya Shapiro and Lloyd Cohen. Elizabeth Slattery will serve as moderator. The event, which will happen at the foundation’s Allison Auditorium in Washington, can be viewed online on the foundation’s website.

 
Share:

Wednesday round-up

By on Dec 6, 2017 at 7:19 am

This morning the Supreme Court will hear oral argument in two cases. The first is Murphy v. Smith, which asks who should pay attorney’s fees in successful civil-rights cases brought on behalf of prisoners. Charlotte Garden had this blog’s preview. D.E. Wagner and Leonardo Mangat preview the case for Cornell Law School’s Legal Information Institute. The second case of the day is Marinello v. United States, in which the justices will consider the limits of tax-law obstruction-of-justice charges. Susan Morse previewed the case for this blog, while Robin Grieff and Hillary Rich have Cornell’s preview.

Yesterday the justices heard argument in one of the term’s most closely watched cases, Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which they will decide whether the First Amendment bars Colorado from requiring a baker to create a cake for a same-sex wedding. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. Mark Walsh offers a “view” from the courtroom for this blog. At Bloomberg,  Greg Stohr reports that “[p]ivotal Justice Anthony Kennedy sent mixed messages” during the “spirited” argument. Additional coverage of the argument comes from Richard Wolf at USA Today, who also highlights some of the justices’ questions here; Bill Mears at Fox News; Jess Bravin and Brent Kendall for The Wall Street Journal; Nina Totenberg at NPR; Robert Barnes and Ann Marimow for The Washington Post; Kevin Daley at The Daily Caller; Adam Liptak for The New York Times; Lawrence Hurley at Reuters; Mark Sherman at the Associated Press; Mark Walsh at Education Week’s School Law Blog; Steven Mazie at The Economist’s Democracy in America blog; and Lyle Denniston at his eponymous blog. Subscript has a graphic explainer for the case.

Continue reading »

Posted in Round-up
 
Share:

Petition of the day

By on Dec 5, 2017 at 6:18 pm

The petition of the day is:

17-667

Issue: Whether a plaintiff bears the full burden of establishing loss causation under 29 U.S.C. § 1109(a), which allows an employee plan to recover for “any losses to the plan resulting from [a fiduciary’s] breach of its duties” under ERISA, as the U.S. Courts of Appeals for the 6th, 9th, 10th, and 11th Circuits have held, or whether the burden shifts to the fiduciary to establish the absence of loss causation once the beneficiary makes a prima facie case by establishing breach of fiduciary duty and associated loss, as the U.S. Courts of Appeals for the 2nd, 4th, 5th, and 8th Circuits have held.

It’s the biggest case of the term, Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, and the press is asked to arrive extra early at the Supreme Court this morning. We also are led up to the courtroom earlier than usual, about 9:15 a.m.

It’s so early that most of the public gallery has not yet filled, though the crowd is coming. Jack Phillips, the owner of Masterpiece Cakeshop, is seated in the third row of the middle section of the public gallery.

Charlie Craig and David Mullins, the gay couple who were denied a custom wedding cake by Phillips in 2012, are not yet in the courtroom, but we saw them on the ground floor. Soon they will enter with Craig’s mother, Deborah Munn, and take seats in the third row, but in a section across the aisle from Phillips and his party. Munn accompanied Craig and Mullins when they visited Masterpiece Cakeshop seeking a cake for their wedding reception.

Continue reading »

Argument transcript

By on Dec 5, 2017 at 1:47 pm

The transcript in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is available on the Supreme Court’s website.

Posted in Merits Cases
 
Share:

[Editor’s note: This post was updated at 2:49 p.m. to provide expanded analysis of the argument.]

Lines began forming outside the Supreme Court last week for one of the biggest oral arguments of the year, in the case of a Colorado man who says that requiring him to create custom cakes for same-sex weddings would violate his religious beliefs. At the end of over an hour of debate, it became clear that, at least in one respect, the case is just like so many others: It is likely to hinge on the vote of Justice Anthony Kennedy, who initially seemed sympathetic to the same-sex couple but later expressed real concern that Colorado had not been sufficiently tolerant of the baker’s religious freedom.

The dispute before the Supreme Court today dates back to 2012, when Charlie Craig and David Mullins went to Masterpiece Cakeshop, a Denver-area bakery, to order a special cake to celebrate their upcoming marriage. But Jack Phillips, the owner of the bakery, refused to make them a cake. Phillips, who describes himself as a “cake artist,” is also a Christian who closes his business on Sundays and refuses to design custom cakes that conflict with his religious beliefs – for example, cakes that contain alcohol, have Halloween themes or celebrate a divorce or same-sex marriage. The Colorado agencies responsible for enforcing the state’s anti-discrimination laws ruled that Phillips’ refusal to provide the custom cake violated those laws and that he had “no free speech right” to turn down Craig and Mullins’ request. They told Phillips that, if he decided to create cakes for opposite-sex weddings, he would also have to create them for same-sex weddings.

Continue reading »

Relist Watch

By on Dec 5, 2017 at 11:31 am

John Elwood reviews Monday’s relists.

For a Supreme Court (and litigants) that remains a smidge light on grants, Zarathust No Diso is coming early this year: There are more relists on for this Friday’s conference than for all conferences since mid-October combined — nine of ‘em, versus a total of seven for the five conferences since October 23. To be fair, four of those involve a single issue, but this well-timed torrent of relists (and potential grants) is still a welcome development for those hoping to get more cases decided this term. As we approach the “cutoff date” in early to mid-January marking the point by which cases must be granted to be argued this term, we can expect the load of relists to remain heavy.

Continue reading »

 
Share:

Tuesday round-up

By on Dec 5, 2017 at 7:21 am

The Supreme Court will hear oral argument this morning in a high-profile case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the justices will consider whether the First Amendment bars Colorado from requiring a baker to create a cake for a same-sex wedding. Amy Howe previewed the case for this blog. Jared Ham and Amanda Wong did the same for Cornell Law School’s Legal Information Institute. Additional coverage comes from Mark Matthews for The Denver Post, Jess Bravin for The Wall Street Journal, Steven Mazie for The Economist’s Espresso blog, and Robert Barnes for The Washington Post, who reports that “[t]he case’s importance is underscored by the attention it has received: 100 amicus briefs have been filed and people began camping out Friday afternoon on the sidewalk in front of the Supreme Court to secure a spot” in the courtroom for the argument. At Fox News, Bill Mears reports that “[b]y wading again into the culture wars, the justices will have to confront recent decisions on both gay rights and religious liberty.” At Bloomberg BNA, Patrick Gregory profiles the women attorneys on each side of the case.

Commentary comes from the baker, Jack Phillips, in an op-ed for USA Today, Kristen Waggoner in an op-ed for The Washington Times, Jim Campbell in an op-ed for AZCentral, Michael Farris in an op-ed for Fox News, James Gottry in an op-ed for The Denver Post, Ross Runkel at his eponymous blog, Ryan Lockman at Lock Law Blog, Dorothy Samuels at The American Prospect, Steven Mazie at The Economist’s Democracy in America blog, Brian Miller at Quillette, David Gans at Take Care, who maintains that “even Justices … who broadly interpret the First Amendment’s guarantee of the freedom of speech[] should be skeptical of these new complicity claims,” and Thomas Berg and Douglas Laycock at the Berkley Center, who argue that “[b]y recognizing a carefully defined right for Phillips, the Supreme Court can ensure meaningful protection for both same-sex couples and religious dissenters.”

Continue reading »

Posted in Round-up
 
Share:

These days, the Supreme Court is known as a “hot bench”: Lawyers who argue there usually have to respond to a barrage of questions from all sides. That fast and furious questioning can make it hard for advocates to advance their arguments, but it also makes it easier for both the attorneys and spectators to figure out what the justices care about, and how they might rule. The flip side of this is that when the justices are quieter, the advocates have more time to talk, but it’s harder to know what the justices are thinking.

The latter scenario was on display this morning at the Supreme Court, when the justices heard oral argument in Rubin v. Islamic Republic of Iran. The case is the latest chapter in efforts by American victims of a series of suicide bombings in Jerusalem in 1997 to recover a $71.5 million default judgment from the Islamic Republic of Iran for its role in providing support to Hamas, the terrorist group that claimed responsibility for the blast. After approximately 45 minutes of oral argument, the justices seemed likely to rule against the victims, but their relative silence made it difficult to know for sure.

Continue reading »

Petition of the day

By on Dec 4, 2017 at 6:18 pm

The petition of the day is:

17-202

Issues: Whether the U.S. Court of Appeals for the 9th Circuit erred by its unprecedented holding, in conflict with decisions of the U.S. Courts of Appeals for the 2nd and 4th Circuits, and the consistent teachings of the Supreme Court, that the First Amendment permits issuance of an injunction restraining the release of information of undisputed and legitimate public interest; and (2) whether the U.S. Court of Appeals for the 9th Circuit’s application of the “abuse of discretion” standard on appeal in a case involving restrictions on First Amendment rights merits summary reversal.

More Posts: More Recent PostsOlder Posts
Term Snapshot
Awards