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Wednesday round-up

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.

Ilya Shapiro discusses the argument at the Cato Institute’s Cato at Liberty blog, finding it “disconcerting that Justice Sonia Sotomayor kept comparing this case to  cases from the Jim Crow Era when African Americans were denied service at restaurants altogether.” At Dorf on Law, Michael Dorf highlights three objections to a key hypothetical example offered by the solicitor general on behalf of the baker. Additional commentary on the argument comes from Ruthann Robson at the Constitutional Law Prof Blog, who observes that “if Justice Kennedy is the deciding vote, his attention to the religious aspects of the challenge could make the free speech argument less consequential,” and Erica Goldberg at In a Crowded Theater, who details “the ways each Justice framed the case.” Commentary on the case comes from John Culhane at Politico Magazine, Roger Pilon in an op-ed for The Orange County Register, and Brian Miller in an op-ed for Forbes.

At ESPN, Ryan Rodenberg reports on Monday’s argument in Christie v. National Collegiate Athletic Association, a constitutional challenge to the federal ban on sports betting. At Legal Sports Report, Dustin Gouker recounts “some of the handicapping and justice counting that we’ve seen about the final outcome.”


  • Supreme Court Brief (subscription required) has adopted a new format; in their most recent posting, Tony Mauro and Marcia Coyle look at the lawyers in Masterpiece Cakeshop, preview the lawyering in upcoming cases, and report on other developments at the court, including recusals.
  • At The Economist’s Democracy in America blog, Steven Mazie suggests that this week’s orders allowing the latest version of the administration’s entry ban to go into full effect pending appeals “hinted that if Mr Trump’s travel ban reaches [the Supreme Court], a majority may be unreceptive to arguments it should be struck down as executive overreach or a violation of the constitution.”
  • At SSRN, Jesse Snyder and Andrew Gann look at the implications of last term’s decision in Expressions Hair Design v. Schneiderman, in which the court ruled that a New York’s credit-card surcharge ban regulates speech, suggesting that the case “portends a vehicle to challenge any law as abridging free-speech rights” and wondering whether “Schneiderman [is] the new Lochner.”
  • At the Cato Institute’s Daily Podcast, Jay Schweikert discusses Collins v. Virginia, in which the court will decide whether a police officer can conduct a warrantless search of a car parked on private property near a house, noting that the case gives the Supreme Court “an opportunity to reaffirm that your home is truly your castle.”
  • At Florida Court Review, John Cavaliere notes that the Supreme Court denied review without comment Monday in a Florida capital case that “seemed to raise a preserved Eighth Amendment challenge to the Florida Supreme Court’s retroactive line-drawing.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Dec. 6, 2017, 7:19 AM),