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.

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Argument transcript

By on Dec 5, 2017 at 1:47 pm

The transcript in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is available on the Supreme Court’s website.

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[Editor’s note: This post was updated at 2:49 p.m. to provide expanded analysis of the argument.]

Lines began forming outside the Supreme Court last week for one of the biggest oral arguments of the year, in the case of a Colorado man who says that requiring him to create custom cakes for same-sex weddings would violate his religious beliefs. At the end of over an hour of debate, it became clear that, at least in one respect, the case is just like so many others: It is likely to hinge on the vote of Justice Anthony Kennedy, who initially seemed sympathetic to the same-sex couple but later expressed real concern that Colorado had not been sufficiently tolerant of the baker’s religious freedom.

The dispute before the Supreme Court today dates back to 2012, when Charlie Craig and David Mullins went to Masterpiece Cakeshop, a Denver-area bakery, to order a special cake to celebrate their upcoming marriage. But Jack Phillips, the owner of the bakery, refused to make them a cake. Phillips, who describes himself as a “cake artist,” is also a Christian who closes his business on Sundays and refuses to design custom cakes that conflict with his religious beliefs – for example, cakes that contain alcohol, have Halloween themes or celebrate a divorce or same-sex marriage. The Colorado agencies responsible for enforcing the state’s anti-discrimination laws ruled that Phillips’ refusal to provide the custom cake violated those laws and that he had “no free speech right” to turn down Craig and Mullins’ request. They told Phillips that, if he decided to create cakes for opposite-sex weddings, he would also have to create them for same-sex weddings.

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Relist Watch

By on Dec 5, 2017 at 11:31 am

John Elwood reviews Monday’s relists.

For a Supreme Court (and litigants) that remains a smidge light on grants, Zarathust No Diso is coming early this year: There are more relists on for this Friday’s conference than for all conferences since mid-October combined — nine of ‘em, versus a total of seven for the five conferences since October 23. To be fair, four of those involve a single issue, but this well-timed torrent of relists (and potential grants) is still a welcome development for those hoping to get more cases decided this term. As we approach the “cutoff date” in early to mid-January marking the point by which cases must be granted to be argued this term, we can expect the load of relists to remain heavy.

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Tuesday round-up

By on Dec 5, 2017 at 7:21 am

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.”

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These days, the Supreme Court is known as a “hot bench”: Lawyers who argue there usually have to respond to a barrage of questions from all sides. That fast and furious questioning can make it hard for advocates to advance their arguments, but it also makes it easier for both the attorneys and spectators to figure out what the justices care about, and how they might rule. The flip side of this is that when the justices are quieter, the advocates have more time to talk, but it’s harder to know what the justices are thinking.

The latter scenario was on display this morning at the Supreme Court, when the justices heard oral argument in Rubin v. Islamic Republic of Iran. The case is the latest chapter in efforts by American victims of a series of suicide bombings in Jerusalem in 1997 to recover a $71.5 million default judgment from the Islamic Republic of Iran for its role in providing support to Hamas, the terrorist group that claimed responsibility for the blast. After approximately 45 minutes of oral argument, the justices seemed likely to rule against the victims, but their relative silence made it difficult to know for sure.

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Petition of the day

By on Dec 4, 2017 at 6:18 pm

The petition of the day is:

17-202

Issues: Whether the U.S. Court of Appeals for the 9th Circuit erred by its unprecedented holding, in conflict with decisions of the U.S. Courts of Appeals for the 2nd and 4th Circuits, and the consistent teachings of the Supreme Court, that the First Amendment permits issuance of an injunction restraining the release of information of undisputed and legitimate public interest; and (2) whether the U.S. Court of Appeals for the 9th Circuit’s application of the “abuse of discretion” standard on appeal in a case involving restrictions on First Amendment rights merits summary reversal.

This afternoon the Supreme Court granted the federal government’s request to allow it to enforce the full set of restrictions imposed by President Donald Trump’s September 24 proclamation, often known as the “travel ban.” The proclamation limits the entry into the United States of nationals from eight countries – Iran, Libya, Yemen, Somalia and Syria (all of which were covered by an earlier order, issued on March 6), along with North Korea, Venezuela and Chad (which were not covered by the March 6 order). A federal court in Hawaii blocked the government from implementing the September 24 order, while a federal judge in Maryland barred the government from enforcing the order with respect to nationals of affected countries who can claim to have a genuine relationship with a person or institution in the United States. The U.S. Court of Appeals for the 9th Circuit imposed a similar freeze on the order while the government appeals the Hawaii judge’s ruling, but that didn’t go far enough for the federal government, which went to the Supreme Court last month seeking to implement the entire ban.
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As we enter the courtroom for today’s argument in Christie v. National Collegiate Athletic Association, we are hopeful we can identify where Gov. Chris Christie of New Jersey is sitting so we can analyze his reactions to the case about sports betting.

Often the lead petitioner is seated on the far side of the courtroom, away from the press section. But not today. The governor is seated in the front row of the bar section, in the seat that abuts the first press row

Gov. Chris Christie is admitted to the Supreme Court bar prior to arguments in Christie v. NCAA. (Art Lien)

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Argument transcripts

By on Dec 4, 2017 at 2:56 pm

The transcript in Christie v. National Collegiate Athletic Association is available on the Supreme Court’s website; the transcript in Rubin v. Islamic Republic of Iran is also available.

 

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