Breaking News

A “view” from the courtroom: Setting the table for a major ruling

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.

Kristen Waggoner, who will argue the case for Phillips, enters the courtroom, accompanied by Michael Farris, the president, CEO and general counsel of Alliance Defending Freedom. Jordan Lorence, a senior counsel with ADF, is seated in the public gallery.

The American Civil Liberties Union, which represents Craig and Mullins, has a strong presence here today, with legal director David Cole to argue part of the case, ACLU lawyers such as James Esseks and Louise Melling in the bar section, and retired legal director Steven Shapiro in the public gallery.

U.S. Solicitor General Noel Francisco takes a seat at the same table as Waggoner, while Cole is sharing his argument with Colorado Solicitor General Frederick Yarger.

Sen. Claire McCaskill, Democrat of Missouri, arrives and takes a place in the public gallery along with her daughter Lily, whom she identifies on Twitter as a second-year law student.

The justices’ aides bring the more than 100 briefs to their bosses’ place at the bench. Some have to use big magazine holders to carry all the briefs, while others are able to balance the whole stack in one fell swoop. But all break the briefs into smaller piles, lest their justices be hidden behind a giant stack of color-coded booklets.

With only one big case today, one wonders whether Chief Justice John Roberts will announce some extra argument time, as he did last week at the outset of a Fourth Amendment case, Carpenter v. United States.

The justices take the bench, and as usual there are bar admissions. No governors or other prominent new members today, though.

Roberts then calls the Masterpiece Cakeshop case. He offers no suggestion of extra time, but the argument will end up growing anyway (at times a bit out of control).

Amy Howe has the main report for this blog, recounting a court sharply divided, with the justices constantly fighting for the floor.

Justice Elena Kagan presses Waggoner on where to draw the line between creative professionals engaged in protected speech. Are chefs, jewelers, hairstylists or makeup artists engaged in speech?

Waggoner says no to those.

“The makeup artist?” asks Kagan. “It’s called an artist. It’s the makeup artist.” The crowd laughs.

The argument continues in a somewhat mouth-watering vein at times.

“When have we ever given protection to a food?” Justice Sonia Sotomayor asks Waggoner. “The primary purpose of a food of any kind is to be eaten.”

Addressing Fransciso, Justice Samuel Alito references earlier mentions of divine culinary creations and says, “General, my colleagues, I think, go to more elite restaurants than I do.”

He adds that he dreams of one day going to a one-tenth to two-star Michelin restaurant.

Justice Neil Gorsuch says that “I have yet to have a wedding cake that I would say tastes great.”

We can’t see Phillips’ expression at that moment but imagine he is dismayed.

Kagan is perhaps responsible for the extension of the argument, when she asks Waggoner a question during Waggoner’s last five minutes.

“Sorry, very quickly, I know your light is on and I’m sure you’ll be given a little bit of an adjustment,” Kagan says. Turning to the chief justice, she adds, “Is that okay?”

Roberts nods his head from side to side in a noncommittal way, but it now seems inevitable that the argument will expand. And when Waggoner reaches the end of her presentation, the chief justice says she will be afforded her full rebuttal time.

When that time comes along later in the argument, Sotomayor is immediately ready to use it up with more questions. Finally, Waggoner makes some of her rebuttal points, and Sotomayor has still more questions.

When Waggoner’s red light comes on, Roberts says, “a brief last word, Ms. Waggoner.” She gets in one or two final points, uninterrupted, and the case is submitted.

Recommended Citation: Mark Walsh, A “view” from the courtroom: Setting the table for a major ruling, SCOTUSblog (Dec. 5, 2017, 4:44 PM),