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Today’s orders

This morning the justices issued orders from last week’s private conference – the first set of regularly scheduled orders in which the court’s newest justice, Neil Gorsuch, fully participated. Gorsuch, who was sworn in on April 10, did not participate at all in the order list issued on April 17, and he participated in only a handful of last week’s orders. But today’s orders noted that he was recused from just two cases on the list, thereby confirming that he participated in all of the remaining orders.

Despite Gorsuch’s participation in last week’s conference, though, the court once again did not act on Masterpiece Cakeshop v. Colorado Civil Rights Commission, a challenge by a Colorado “cake artist” who objects to having to create cakes for same-sex weddings. Going into last week’s conference, the justices had relisted the case seven times, with an eighth presumably to follow. While Justice Antonin Scalia was still alive, the justices had declined to review a similar decision out of New Mexico, so it’s not clear why they have not yet acted on this case, although the most likely scenario is that one or more of the justices is writing an opinion regarding the court’s denial of review.

The justices did add two new cases to their merits docket for the term that begins in October. If the name David Patchak, the petitioner in one of those grants, sounds familiar, it’s because Patchak is making a return to the Supreme Court, where he prevailed nearly five years ago. In that earlier case, the court held that the federal government had waived its sovereignty from a lawsuit challenging the government’s decision to take title to a piece of land in rural Michigan and hold it in trust for a local Indian tribe, clearing the way for the tribe to build a casino there. The court also ruled that Patchak, who lives near the land, had a legal right to sue the government to block the casino.

After the court ruled for Patchak, the case returned to the lower courts. While the proceedings there were underway, Congress passed a law aimed specifically at the tribe’s trust land. The law “ratified and confirmed” the federal government’s decision to take the land into trust and ordered courts to “promptly” dismiss any pending lawsuits related to the land. Patchak challenged the constitutionality of the new law, arguing (among other things) that it violates the Constitution’s separation of powers principles, by allowing Congress “to encroach upon and exercise powers reserved for the judiciary.” The lower courts rejected that contention, but now the Supreme Court will weigh in.

Today’s second grant, in Merit Management Group v. FTI Consulting, had only been relisted twice, but the justices had also rescheduled it – that is, distributed it for a conference but then put it off without considering it at that conference – five times before the case made it to its first conference. At issue in the case is the meaning of a “safe harbor” provision of the Bankruptcy Code, which protects (or to put it another way, bars bankruptcy trustees from unwinding) transfers “made by or to (or for the benefit of)” a “financial institution.” The U.S. Court of Appeals for the 7th Circuit ruled in this case that the safe harbor provision does not apply if the financial institution merely “acts as a conduit” for the transfer. The court today agreed to decide whether that conclusion is correct.

Both of the cases granted today are likely to be argued in the fall. The justices’ next conference is scheduled for Thursday, May 11.

Recommended Citation: Amy Howe, Today’s orders, SCOTUSblog (May. 1, 2017, 6:55 PM),