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Wednesday round-up

For Constitution Daily, Scott Bomboy reports that in Masterpiece Cakeshop v. Colorado Civil Rights Commission, “[a] divided Supreme Court said on Monday that a Colorado baker and cake artist was wrongly censored by the state of Colorado for refusing to make a cake for a same-sex couple’s wedding party.” At The Economist, Steven Mazie observes that “[s]ix months passed between the hearing and the ruling in Masterpiece,” a delay he suggests may stem from Chief Justice Roberts’ behind-the-scenes efforts “to lower the temperature where possible, even if that means avoiding giving clear guidance on where gay rights end and religious freedom begins.” For the Los Angeles Times, David Savage reports that “the majority’s condemnation of what it saw as the commission’s lack of respect for Phillips’ Christian beliefs raises questions about another big pending case: Is President Trump’s travel ban based largely on hostility toward Muslims?” At The Daily Caller, Kevin Daley notes that “the Masterpiece case and the travel ban directly implicate the extent to which anti-religious animus unlawfully infests policymaking,” so that “the outcome of one may tell observers something about the outcome of the other.” Additional coverage comes from Lyle Denniston at Constitution Daily and Tony Mauro at The National Law Journal (subscription or registration required)

At Stanford Law School’s Legal Aggregate blog, Jane Schacter writes that “what signals there are in the majority opinion about the larger conflict suggests that issue may well be resolved against the broadest claims made by merchants seeking religiously-based exemptions from the command of antidiscrimination laws.” Additional commentary comes from Mark Pulliam at American Greatness, Louise Melling at Slate, Leslie Griffin at ACS Blog, the First Amendment Blog, Kate Shaw in an op-ed for The New York Times, Silas House, also in a New York Times op-ed, Julia Raifman and Michael Ulrich at WBUR’s Cognoscenti blog, Cullen Seltzer at Sands Anderson, Steve Schiffrin at Religious Left Law, Mark Tushnet at Balkinization, Christine Emba in an op-ed for The Washington Post, Elizabeth Reiner Platt at Rewire.News, Ilya Shapiro at the Cato Institute’s Cato at Liberty blog, and the editorial board of The Wall Street Journal, which concludes that “[p]erhaps the best that can be said is that florists, make-up artists, photographers and other people of faith have lived to fight another day.”

For this blog, Justin Marceau analyzes Monday’s opinion in Hughes v. United States, in which the justices held that a defendant who pleads guilty in a plea deal can benefit from later changes in the sentencing guidelines so long as the district court relied on the guideline range in imposing the sentence or accepting the agreement. Subscript has a graphic explainer for the decision. At PrawfsBlawg, Richard Re remarks that although “the justices ultimately chose not to address the precedential significance of 4-1-4 decisions,” “the Court’s ruling still managed to undermine one of the main defenses of the Marks rule” for extracting precedent from fragmented opinions, which finds the Marks rule “desirable because it aligns with the ‘predictive model’ of precedent, whereby lower courts strive to predict the decisions of their judicial superiors.” Also at PrawfsBlawg, Will Baude suggests that “we need to think more carefully about what the ‘predictive model’ actually is and whether we might be able to refine it into something that makes sense.”

This blog’s opinion analysis in Lamar, Archer & Cofrin, LLP v. Appling, in which the court held on Monday that a false statement about a single asset can constitute a statement about a debtor’s financial condition under bankruptcy law, comes from Danielle D’Onfro. Subscript’s graphic explainer is here. At Courthouse News Service, William Dotinga reports that the justices concluded that “if Congress wanted the bankruptcy provision to include only statements expressing the balance of a debtor’s assets and liabilities, it would have” said so explicitly, but “[i]nstead, it used broad language.” Alex Wolf analyzes the decision at Law360 (subscription required), concluding that “[c]reditors who rely on the good faith of debtors for repayment were firmly reminded Monday that any agreement to extend credit should be in writing.”

For the Tribune News Service (via Governing), Chuck Lindell reports that in Monday’s ruling in Azar v. Garza, vacating as moot a lower-court decision that cleared the way for an undocumented teenager held in a federal facility to obtain an abortion, the justices “declined to wade into allegations that ACLU lawyers lied about the timing of [the] abortion to avoid an appeal that could have blocked the procedure.” Additional coverage comes from Lyle Denniston at Constitution Daily, who reports that “[t]he Administration … is expected to use the Justices’ new ruling as support for its continuing efforts in the lower courts to regain complete control over access to abortions for undocumented teenagers held in immigration detention.”


  • At Law360 (subscription required), Amy Rosen reports that the court “said Monday it would not review a Second Circuit dismissal of a lawsuit by two former Sprint executives who had alleged the Internal Revenue Service and [Ernst & Young] concealed evidence of an investigation into tax shelters.”
  • At Quartz, Ephrat Livni discusses Dassey v. Dittman, a cert petition filed by one of the subjects of the Netflix documentary series “Making a Murderer.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Jun. 6, 2018, 7:29 AM),