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Tuesday round-up

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.”

Yesterday the justices issued orders allowing full enforcement of the latest version of the Trump administration’s entry ban while litigation continues in the lower courts. Amy Howe has this blog’s coverage. At the Associated Press, Mark Sherman reports that “[t]he action suggests the high court could uphold the latest version of the ban that Trump announced in September.” Additional coverage comes from Robert Barnes for The Washington Post, Adam Liptak for The New York Times, Lawrence Hurley at Reuters, Brent Kendall for The Wall Street Journal, and Lyle Denniston at his eponymous blog, who also reports here that earlier in the day, a “civil rights group told the Supreme Court … about President Trump’s online relay of anti-Muslim videos circulated by a British organization.”

The justices also released orders from last Friday’s conference yesterday. At Reuters, Andrew Chung reports that they “refused to hear Houston’s appeal of a lower court ruling that threw into doubt the city’s spousal benefits to gay married municipal employees, allowing a case that tests the reach of the landmark 2015 decision legalizing same-sex marriage nationwide to proceed.” Additional coverage comes from Lyle Denniston at his eponymous blog, who reports that “as that case had developed in lawyers’ filings, there were several layers of dispute between the two sides on procedural questions about whether the case had reached the Court prematurely.”

Yesterday the justices also heard oral argument in two cases. The first was Christie v. National Collegiate Athletic Association, a constitutional challenge to the federal ban on sports betting. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. Additional coverage of the argument comes from Greg Stohr at Bloomberg, Mark Walsh at Education Week’s School Law Blog, Nina Totenberg at NPR, Tony Mauro at The National Law Journal (subscription or registration required), Brent Kendall for The Wall Street Journal, David Savage for the Los Angeles Times, Adam Liptak for The New York Times, Jessica Gresko at the Associated Press, and Lawrence Hurley at Reuters, who reports that “[c]onservative … justices … indicated they may be willing to allow New Jersey to legalize sports betting in a case that could pave the way for other states to do the same thing.” At The Daily Caller, Kevin Daley reports that the case “will provide further guidance as to how the federal government can coerce or encourage states to adopt certain policies[, and] … could have major implications for Trump administration priorities like sanctuary cities.” At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro offers a take on the oral argument. Subscript has a graphic explainer for the case.

Yesterday’s second argument was in Rubin v. Iran, in which the justices considered the contours of immunity in cases involving foreign state sponsors of terrorism. Amy Howe analyzes the argument for this blog; her analysis was first published at Howe on the Court. Subscript’s graphic explainer for the case is here. At, Tony Mauro and Marcia Coyle provide an inside look at Rubin and Christie and survey the justices’ other doings this week.

For The New York Times, Adam Liptak reports that in Lozman v. City of Riviera Beach, Florida, which asks whether the existence of probable cause defeats a retaliatory-arrest claim, Fane Lozman “has pulled off the rare feat of hauling the city into the Supreme Court in two separate cases.” At his eponymous blog, Sheldon Nahmod takes a look at the issues in the case.


  • At The National Law Journal (subscription or registration required), Marcia Coyle reports that in its response to the government’s cert petition in Hargan v. Garza, “[t]he American Civil Liberties Union on Monday called ‘baseless’ the U.S. Justice Department’s accusation that lawyers for the group acted unethically in their advocacy for a pregnant immigrant teen who sought an abortion.”
  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and others urge the court to review a case, Knick v. Township of Scott, Pennsylvania, that “showcases the unique challenges faced by property owners asserting takings claims.”
  • In another posting at Cato at Liberty, Ilya Shapiro argues for another cert grant, in a case that asks the court to overturn the “misguided” “‘dual sovereignty’ exception to that Double Jeopardy Clause, which the Supreme Court created 60 years ago—the idea that federal and state prosecutions have to be counted separately.”
  • At SSRN, Hugo Farmer considers some of the issues discussed during last week’s oral argument in Digital Realty Trust Inc. v. Somers, which involves the whistleblower protections of the Dodd-Frank Act.

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Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Dec. 5, 2017, 7:21 AM),