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December argument session will feature divisive cases on election law, First Amendment

artist's rendering of nine unoccupied chairs behind an empty bench overlooking an empty lectern.

The Supreme Court’s December argument session will feature two of the highest-profile cases of the 2022-23 term: a free-speech claim by a website designer who opposes same-sex marriage and a case involving the power of state legislatures to set rules for federal elections. That news came with the release of the court’s December argument calendar on Tuesday.

The justices will hear argument in 303 Creative v. Elenis, the case brought by Colorado website designer Lorie Smith, on Dec. 5. Smith wants to expand her business to create custom wedding websites, but she opposes same-sex marriage on religious grounds and wants to put a notice on her own website to explain that – a message that would violate Colorado law, which bars businesses that are open to the public from discriminating against LGBTQ people or announcing an intent to do so. 

Two days later, the justices will hear oral argument in Moore v. Harper, a dispute arising from the North Carolina legislature’s efforts to draw a new congressional map in response to the 2020 census. The Republican legislators defending the plan argue that a ruling by the North Carolina Supreme Court invalidating the legislature’s map and ordering the state to draw a new one violates the “independent state legislature” theory – the idea that, under the Constitution, only the legislature has the power to regulate federal elections, without interference from state courts.

303 Creative and Moore v. Harper are two of the nine cases in the December argument session, which begins on Nov. 28. The justices will also hear oral arguments in two cases involving federal fraud and bribery statutes, a challenge to the Biden administration’s immigration enforcement decisions, and the government’s authority to dismiss a lawsuit brought under the False Claims Act.

Here is the full list of cases scheduled for argument in the December argument session:

  • Percoco v. United States (Nov. 28): Whether a private citizen who can influence government decision-making owes a duty to the public, so that he can be convicted of bribery.
  • Ciminelli v. United States (Nov. 28): Whether a defendant can be convicted under the federal wire-fraud statute based on a “right to control” theory – that is, failing to share information that is valuable in making business decisions.
  • United States v. Texas (Nov. 29): A challenge to the Biden administration’s policy of prioritizing certain groups of unauthorized immigrants for arrest and detention.
  • Wilkins v. United States (Nov. 30): Whether the 12-year statute of limitations to bring a lawsuit under the Quiet Title Act is jurisdictional – that is, it goes to the court’s power to hear the case and cannot be waived.
  • 303 Creative v. Elenis (Dec. 5): Whether applying Colorado’s public-accommodation law to require an artist to speak or stay silent violates the Constitution’s free speech clause.
  • MOAC Mall Holdings v. Transform Holdco (Dec. 5): Whether a provision of federal bankruptcy law limits the power of the courts of appeals over an order approving the sale of a debtor’s assets, or whether the law instead simply limits the remedies available on appeal from such an order.
  • United States ex rel. Polansky v. Executive Health Services (Dec. 6): Whether, when an individual brings a lawsuit on behalf of the government alleging fraud on the United States, the government has the power to dismiss the lawsuit after initially declining to take over the case.
  • Bartenwerfer v. Buckley (Dec. 6): Whether a bankruptcy debtor can be held liable for another person’s fraud, which cannot be discharged in bankruptcy, when she was not aware of the fraud.
  • Moore v. Harper (Dec. 7): Whether a state supreme court’s order invalidating a state’s congressional map and ordering the state to draw a new one violates the Constitution’s elections clause.

This article was originally published at Howe on the Court.

Recommended Citation: Amy Howe, December argument session will feature divisive cases on election law, First Amendment, SCOTUSblog (Oct. 18, 2022, 6:42 PM),