Thursday round-up

EDITH ROBERTS DEC 7, 2017 7:23 AM

Yesterday the Supreme Court heard oral argument in two cases. The first was Murphy v. Smith, which asks who should pay attorney’s fees in successful civil-rights cases brought on behalf of prisoners. Subscript has a graphic explainer for the case. Yesterday’s second case was Marinello v. United States, in which the justices considered the limits of tax-law obstruction-of-justice charges. For Law360 (subscription required), Vidya Kauri reports that at oral argument, “the debate largely focus[ed] on taxpayer intent to make the IRS’ job harder.” Subscript’s graphic explainer is here.

Tuesday’s oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court will decide whether the First Amendment bars Colorado from requiring a baker to create a cake for a same-sex wedding, continues to provide food for thought (and bad puns). NPR’s Nina Totenberg breaks down the legal issues in the case in a YouTube video. Bloomberg BNA’s US Law Week Blog offers video interviews in which advocates on both sides react to the argument. At Keen News Service, Lisa Keen observes that “the court’s transcript of the proceeding betrayed how unnervingly unpredictable the outcome of this dramatically important case is.”

Additional commentary on Masterpiece Cakeshop comes from Jeff Milchen at The American Independent Business Alliance; Walter Olson in an op-ed for the New York Daily News; law student Justin Burnam at The Least Dangerous Blog; Mark Joseph Stern at Slate; David Boyle at Casetext; Jeffrey Toobin at The New Yorker’s Daily Comment blog; Howard Wasserman at PrawfsBlawg; Douglas Laycock and Thomas Berg at Vox; the same authors in an op-ed for the New York Daily News, where they maintain that “[t]he free exercise argument lets the Court craft a narrow exception focused just on sincere religious believers and on weddings”; and Rick Hills at PrawfsBlawg, who suggests that “respect for federalism’s role in defusing deep disagreements should lead the Court to affirm by deferring heavily to Colorado’s characterization of its purpose.”

Briefly:

• At his eponymous blog, Lyle Denniston reports that “[i]n a highly unusual filing, a federal judge in San Francisco told the Supreme Courton Wednesday afternoon that there is no clear legal rule that he violated when he ordered the Trump Administration to disclose more fully how it made the decision to end the ‘DACA’ program that protects young undocumented immigrants from deportation.”
• At IIT Chicago-Kent College of Law’s SCOTUS now blog, Cody Jacobs remarks on the court’s recent denial of certiorari in Kolbe v. Hogan, a Second Amendment challenge to Maryland’s ban on semiautomatic rifles and large-capacity magazines, suggesting that “[t]he Court’s refusal to grant cert in case after case upholding a wide range of gun laws may show that a majority of the Court at least has serious doubts that these laws violate the Second Amendment,” but noting that “that majority may not last with President Trump explicitly promising to fill any vacancies that arise during his term with pro-gun justices.”
• In an op-ed for The New York Times, Linda Greenhouse looks at an upcoming case, National Institute of Family and Life Advocates v. Becerra, a First Amendment challenge by crisis-pregnancy centers to a California law requiring disclosures about the availability of publicly funded family-planning services, including contraception and abortion, observing that “[r]egulating the speech that takes place in doctors’ offices is an issue that cuts both ways in the abortion context.”
• At Reuters’ On the Case blog, Alison Frankel notes that “[t]he pharmaceutical industry … got a jolt of good news Monday [when] the justices askedthe U.S. solicitor general to weigh in on Merck’s petition for Supreme Court review of a [lower-court] ruling … that makes it ‘virtually impossible,’ in Merck’s words, for drug companies to win dismissal of personal injury suits by citing the Food and Drug Administration’s oversight of drug labeling.”

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