Petition of the day

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Petition of the day

The petition of the day is:

17-278

Issue: Whether entities conducting foreclosure-related activities, including notifying borrowers that their homes will be sold unless payment is made, are subject to the Fair Debt Collection Practices Act’s general restrictions on “debt collectors.”

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Francisco confirmed as solicitor general

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Francisco confirmed as solicitor general

By a vote of 50-47 that broke down almost completely on party lines, the Senate today confirmed Noel Francisco to serve as the solicitor general, the government’s top lawyer in the Supreme Court. Francisco’s confirmation comes less than two weeks before the court’s new term is scheduled to start, with a number of important cases – ranging from the challenge to the Trump administration’s March 6 executive order, often known as the “travel ban,” to a dispute over the right of employees to pursue work-related claims against their employers as a group – on the docket for October.

Even before President Donald Trump nominated him to serve as solicitor general, Francisco was well known in the Washington legal community. A former clerk to the late Justice Antonin Scalia, Francisco served in the George W. Bush administration before going to the Washington office of Jones Day. While at that firm, he argued in the Supreme Court on behalf of (among others) former Virginia governor Robert McDonnell and the Little Sisters of the Poor.

Shortly after Trump’s inauguration, the president named Francisco as the principal deputy solicitor general. Francisco then served as the acting solicitor general until Trump announced that he intended to nominate Francisco as the solicitor general. But because federal law prohibited Francisco from serving as the acting solicitor general once he had been nominated to be the solicitor general, Francisco then moved to another part of the Department of Justice to await his confirmation. Jeffrey Wall has been the acting solicitor general since then, serving as the federal government’s lead lawyer in its defense of the travel ban.

The vote on Francisco was closer than those for some of his predecessors: Donald Verrilli, who served as solicitor general from 2011 to 2016, was confirmed by a vote of 72-16; Elena Kagan, who served from 2009 to 2010, was confirmed by a vote of 61-31; and Gregory Garre, who served from 2008 to 2009, was confirmed unanimously.

This post was originally published at Howe on the Court.

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Tuesday round-up

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Tuesday round-up

In The National Law Journal (subscription or registration required), Tony Mauro highlights an amicus brief filed “on behalf of a group of ‘cake artists’ across the country” in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which stems from a baker’s refusal to create a wedding cake for a same-sex couple; the brief “contains roughly three dozen photos of luscious wedding and other special-occasion cakes, ranging from one that looks like a silver pot brimming with crawfish waiting to be boiled, to a ‘Pistol Pete’ cake for a couple who first met at Oklahoma State University.” Garrett Epps discusses the case at The Atlantic, observing that the federal government, in its amicus brief filed in support of the baker relying on the First Amendment’s speech clause, “asks [for] a constitutional exemption to civil-rights laws regardless of the underlying motive.” At Dorf on Law, Eric Segall argues that the baker’s “speech claims cannot be satisfactorily resolved on the present record, and therefore the Court should not resolve [them].”

Briefly:

  • At The Texas Tribune, Alexa Ura reports that the city of Houston has asked the Supreme Court to review a decision of the Texas Supreme Court “thr[o]w[ing] out a lower court ruling that said spouses of gay and lesbian public employees are entitled to government-subsidized marriage benefits and unanimously order[ing] a trial court to reconsider the case.”
  • At American Thinker, Wen Fa weighs in on the pending cert petition in Minnesota Voters Alliance v. Mansky, a challenge to a Minnesota law that bans political apparel at polling places, urging the justices to remind “[g]overnments from coast to coast … that they may not turn polling places — or any other public spaces — into speech-free zones, in defiance of the First Amendment’s free speech guarantees.”
  • At PrawfsBlawg, Carissa Hessick enumerates the “seemingly irrelevant issues” militating against a cert grant in “an ineffective assistance claim out of Arkansas” that the justices will consider at “the so-called ‘long conference,’ which will take place on September 25th, … when the Court will consider hundreds (if not thousands) of cert petitions that have piled up over the summer.”
  • Slate’s Amicus podcast features a discussion of Gill v. Whitford, the high-profile partisan-gerrymandering case, with election law expert Richard Hasen.
  • At the CrimProf Blog, Kevin Cole worries that District of Columbia v. Wesby, a qualified-immunity case on next term’s docket, “may be resolved in ways that provide no clear guidance regarding an important underlying question—what level of suspicion is required regarding facts that would need to be established at trial but might be hard to assess by police officers at the time a decision must be made whether to arrest,” a question that “will be of particular importance as more people are covered by state laws legalizing marijuana use.”
  • At Empirical SCOTUS, Adam Feldman looks at the government’s slate of merits and amicus cases for the upcoming Supreme Court term, as well as its pending cert petitions, noting that the “intensity in the OSG’s Supreme Court docket” demonstrates “the political importance of the Supreme Court in the current administration of federal policies.”

We rely on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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Petition of the day

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Petition of the day

The petition of the day is:

17-270
Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue: Whether, under the Speedy Trial Act, time engaged in a plea negotiation that does not result in a finalized plea agreement is automatically excludable as “other proceedings concerning the defendant” under 18 U.S.C. § 3161(h)(1), as four circuits hold; or whether such time is excludable only if the district court makes case-specific “ends of justice” findings under 18 U.S.C. § 3161(h)(7), as four other circuits hold.

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Monday round-up

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Monday round-up

The challenge to President Donald Trump’s March executive order on immigration continues to generate headlines. At CNN, Ariane de Vogue reports that although “[t]he Supreme Court is poised to hear oral arguments in the travel ban case early next month,” in Trump v. International Refugee Assistance Project, “that doesn’t actually mean justices will ever decide the legality of [the] controversial executive order,” and that “[m]uch depends on what the White House decides to do.” In The Economist, Steven Mazie suggests that “[l]ess than a month before the Supreme Court considers the legality of his executive order barring travel from six overwhelmingly Muslim countries,” Trump’s tweets reacting to a London bombing last week “handed a gift to those challenging the ban.”

Briefly:

  • At Reuters, Andrew Chung reports on the upcoming term’s high-profile partisan-gerrymandering case, Gill v. Whitford, noting that the political practice of “manipulating the boundaries of legislative districts to help one party tighten its grip on power” is “nearly as old as the United States,” “and one the Supreme Court has never curbed.”
  • In The New York Times, Adam Liptak talks to the baker and the same-sex couple whose dispute over the baker’s refusal to create a cake to celebrate the couple’s wedding constitutes “another battle in the culture wars,” culminating in a high-profile Supreme Court case, Masterpiece Cakeshop v. Colorado Civil Rights Commission.
  • At Opinio Juris, Heather Cohen looks at Jesner v. Arab Bank PLC, in which the Supreme Court will decide whether corporations can be held liable under the Alien Tort Statute for violations of international law, arguing that if the court answers no to that question, “it will be overturning hundreds of years of legal tradition, as well as undermining the chosen words and understanding of the drafters of the Constitution.”

We rely on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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Symposium: Conscience, conditions, and access to civil society

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Symposium: Conscience, conditions, and access to civil society

Richard W. Garnett is the Paul J. Schierl / Fort Howard Corporation Professor of Law at the University of Notre Dame. He joined an amicus brief with 33 other legal scholars in support of the cakeshop in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

It is striking how easy it has become for a person to stumble into the status of a symbol – or, these days, a viral meme. Jack Phillips is, or was until fairly recently, a skilled cake artist with a small business, Masterpiece Cakeshop, in suburban Denver. Today, he is a litigant in the Supreme Court of the United States and regarded by many as embodying the tension – increasingly, the conflict – between religious conscience and equality.

Phillips regards himself, justifiably, as an artist. He is resolved to living out his vocation as an artist in a way that reflects and respects his Christian commitments. In keeping with his understanding of those commitments, he declined to accept a commission to create a custom wedding cake for two men, Charlie Craig and David Mullins, who were planning a celebration of their wedding.

Phillips regularly provides his goods and services without regard to customers’ sexual orientation and he was willing to sell Craig and Mullins a wide variety of other baked goods. Nevertheless, the Colorado Civil Rights Commission determined that he had discriminated based on sexual orientation in a place of public accommodation in violation of that state’s Anti-Discrimination Act. He was ordered to “cease and desist” such discrimination, to take various “remedial measures,” including retraining his staff, and to file “compliance reports” documenting all service denials and the reasons for them. As a result, and – as he sees it – rather than dis-integrate his creativity and his conscience, he stopped designing custom cakes and lost a substantial share of his business. The question before the justices is whether the commission’s order violates the First Amendment.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is an unusual case, but the conflict between the enterprises of promoting equality through anti-discrimination laws and respecting religious conscience by limiting the reach of such laws is real. It is also unavoidable and ineradicable, because of here-to-stay disagreements among people of good will about the meanings of equality, dignity and freedom and about the appropriate aims and reach of governments’ power.

Some try to deny or dissolve this conflict by prescribing a stingy understanding of religious liberty. Obviously, if it is decreed that “religious liberty” can never include a right to discriminate, then the conflict between religious liberty and anti-discrimination laws disappears. It is clear, though, that meaningful freedom of religion does include, sometimes, a right to decide or distinguish in ways that might otherwise violate such laws. The Supreme Court reaffirmed as much, a few years ago, in its (unanimous) ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. Churches get to select their ministers and determine their memberships even if they draw lines in doing so. The issue, then, is not whether, but when and why, discrimination is sometimes protected religious exercise – or, as Phillips argues, artistic freedom.

Masterpiece Cakeshop presents the justices with a number of interesting First Amendment questions having to do with expressive actions, compelled speech, general applicability and religious neutrality, the relationship between status and conduct, and the purposes of public-accommodations laws. Even the Supreme Court’s quarter-century-old-but-still-awkward “hybrid rights” exception to the Smith free-exercise rule makes an appearance.

Along with a large group of legal scholars, I signed an amicus brief arguing that requiring Phillips “to use his artistic talents in a manner violative of his sincere religious convictions offends the vital constitutional commitment to freedom of expression.” This position finds strong support in one of the Supreme Court’s most famous First Amendment cases, West Virginia State Board of Education v. Barnette, in which Justice Robert Jackson wrote that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Step back, though, just for a moment, from the Supreme Court’s First Amendment precedents and doctrines. There could be an additional way to frame the case and the questions it presents. Start with this: One of the (several) purposes of public-accommodations laws is to ensure efficient and equal access to housing, employment, education, opportunities – to citizenship and civil society. These laws limit the rights of property, contract, action and association to make sure that some people’s exercise of these rights does not prevent others from living and thriving in that middle space – the “public square” – between the purely private and public spheres. The scope and reach of public-accommodations laws are reasonably contested, but most people agree that access to commerce and employment should not be denied or complicated for invidious reasons or because of irrelevant considerations. No one’s admission to civil society should be conditioned on being or becoming someone else.

That said, benefits, opportunities, access and permission regularly come with conditions attached. They are parts and terms of the deal, the contract, the job. Student-loan funds, government research grants, occupational and professional licenses, public-works contracts, tax-exempt status, school accreditation, and on and on all (for better or worse) come trailing strings, regulations, requirements and constraints.

This is not surprising. Still, the power to condition access, or charge for admission, can – like all powers – be abused. The “rules of the road” should not be inefficient, irrational, irrelevant or unfair. It is fine to require passing a driving test as a condition for a driver’s license; it would be strange, though, to require passing a swimming test; and it would be wrong to require an oath of loyalty to the Bureau of Motor Vehicles clerk’s political party. It is fine to impose reporting requirements and privacy-protecting rules on hospitals receiving Medicare funds, but it is unnecessary and unjust to require those hospitals to provide elective abortions.

So, what about Jack Phillips and his Masterpiece Cakeshop? It is unremarkably and uncontroversially “part of the deal” that if he wants to be in the business of cake creation, he can be expected, and required, to pay employees at least a particular wage, to submit his facility and equipment to regular health-and-safety inspections, and to keep records for tax purposes. What’s more, almost everyone agrees that part of the price of admission to his vocation in the marketplace is that he not invidiously or irrationally discriminate in ways that deny or complicate others’ access. Can he be required, though – should he be required, is it necessary for him to be required – to say something he thinks is not true, to disavow what he believes or to act expressively in violation of his conscience?

Some say that requiring Phillips to participate creatively, but unwillingly, in the celebration of a legal marriage is no different than requiring someone who has accepted employment as a firefighter to fight fires. He can, after all, leave the wedding-cake business. But to condition the lawful exercise of his chosen profession on the waiver not only of unfettered freedom of contract but also of the First Amendment right to express – or not – his religiously informed views seems to ask too much. Such a demand crosses over from ensuring access to imposing orthodoxy, from enriching civil society to homogenizing it.

The commission’s defenders argue that Colorado’s condition is necessary to prevent dignitary harms to those whose wedding Phillips refuses to celebrate and to condemn, in the community’s voice, what they regard as his unsound, even offensive, views. It is not clear, though, that our governments have a strong interest in protecting people from the indignity of being offended by disagreement or wounded by disrespect. What’s more, Phillips’ dignity is also at stake, because the official actions against him in effect label as public heresy his conscientious dissent. It is not necessary, in order to accomplish the primary purposes of public-accommodations laws, to condition Phillips’ practice of his craft on an affirmation he cannot in good conscience make and on checking his First Amendment rights at the door of civil society.

This post has been clarified to describe more accurately the baker’s willingness to sell other baked goods to the couple.

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Challengers ask Supreme Court to speed up Texas redistricting cases

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Challengers ask Supreme Court to speed up Texas redistricting cases

Early this week, the Supreme Court – over the dissent of the court’s four more liberal justices – granted Texas’ request to put on hold two lower-court orders that had invalidated two of the state’s federal congressional districts and the state’s maps for the lower house of the Texas legislature. The two courts’ orders had directed Texas Governor Greg Abbott to decide quickly whether to call a special session of the legislature, while also indicating that the state should be prepared to redraw the existing maps this month. Tuesday night’s orders put those rulings on hold. Today the challengers in the case, who prevailed in the lower courts, agreed with the state that the Supreme Court should treat the state’s filings as requests to weigh in on the merits of the two rulings, and they asked the justices to speed up their consideration of those requests.

In a short letter addressed to Scott Harris, the clerk of the Supreme Court, the challengers explain that the court’s disposition of the two cases will have a significant impact: It “will determine the district boundaries for the 2018 congressional and state elections.” If they prevail, the challengers continue, “remedial proceedings will be required on remand, and the State will be required to conduct primary elections under the district lines that result from those proceedings. To minimize the disruption those proceedings may have on the 2018 Texas election calendar,” the challengers conclude, they “agree with the State that the Court’s consideration of these appeals should be expedited.”

The challengers propose a briefing schedule that would allow the justices to consider the two cases at their January 5, 2018, conference. If the court were to grant the state’s request for review, the cases could be argued in the spring of 2018, with a decision on the merits by the end of June.

This post was originally published at Howe on the Court.

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Event announcement

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Event announcement

On September 29 at 12 p.m., the Pacific Legal Foundation and National Review Institute will host an event titled “The Consequential Cases in the Supreme Court’s 2017-2018 Term.” Speakers include Michael Carvin, John Elwood and Donald Verrilli, Jr.; Ramesh Ponnuru will serve as moderator. More information about the event can be found on the Foundation’s website and Eventbrite.

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Symposium: Commercial products as speech – When a cake is just a cake

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Symposium: Commercial products as speech – When a cake is just a cake

Mary L. Bonauto is the Civil Rights Project Director at GLBTQ Legal Advocates & Defenders.

This case is not really about a cake. It is about equal citizenship of gay people, and whether we may engage in the kinds of ordinary transactions others take for granted in the commercial marketplace and beyond. Will moral objections to who we are and whom we love be accorded constitutional supremacy over ordinary human decency, over the Golden Rule, over the long-standing American rule of businesses dealing with all comers? Will these objections justify closing the door on LGBT people and, once again, marking them – including the youth who had begun to hope that they could live a full life – as outcasts and inviting further discrimination?

To circumvent the demands of equality, both Masterpiece Cakeshop and the Department of Justice as amicus seek to draw new constitutional lines about speech in the marketplace – either as “pure speech” or “expressive conduct” – because of the personal creativity that can be involved in making products for sale or providing services. A wedding cake is “not an ordinary baked good; its function is more communicative and artistic than utilitarian,” the government writes.

But exempting businesses from anti-discrimination laws based on personal creative efforts in making a product or providing a service creates a massive hole in those protections. Throughout our existence, humans have used their hands to design, cut, shape and mold products, whether with clay, stone, cloth, metal or edible substances. Earning a living from the sweat of one’s brow coexists with human creativity, with the passion for cutting hair or cooking food, with designing and sewing clothing – with making something both functional and beautiful. Uplifting the dignity and creativity in all work, Dr. Martin Luther King spoke of the “street sweeper” who could “sweep streets like Michelangelo painted pictures; sweep streets like Handel and Beethoven composed music; sweep streets like Shakespeare wrote poetry.” Studs Terkel’s 1970s classic “Working” speaks to the human drive to act and create distinctively, even in mundane tasks, and how the inability to do so feels like imprisonment. And yet we have never equated the human creativity involved in producing a myriad of products and services for public sale as grounds for denying the sale of those products or services to a class of customers because of who they are.

The cakeshop’s counsel says the bakery’s owner “intends to, and does in fact, communicate through” the cakes the bakery sells. However, most of us would think that the message of a special occasion or celebration is the message of those marking the occasion – those celebrating – who plan and even choreograph their event, and know what and why they are celebrating. Not just the baker, but all vendors are the conduits for the celebrants’ expression. Even a student should understand that. But inherent in the cake, the cakeshop says, is the baker’s personal message that a marriage has occurred and should be celebrated, something that is sacrilegious to him in the case of same-sex couples’ marriages.

We do not impugn the baker’s beliefs by remarking on the astonishing breadth of that claim. We have never thought that a bakery takes a position one way or another when making and selling a cake to celebrate a wedding, bat mitzvah or first communion, a baby shower or a birthday celebration. Under the test advanced by the cakeshop and DOJ, a bakery could refuse an order for a baby-shower cake when a married same-sex couple is expecting their first child because the baker believes this birth should not be celebrated, and that a same-sex couple should not be the child’s parents.

The cakeshop claims a willingness to sell “pre-made” products to gay people, but wouldn’t the proposed rule allow a bakery to refuse any cake order for same-sex couples because serving them could be construed as showing support for them as they reach milestones in their shared lives? Under that rule, a copy shop could refuse to print birth announcements for same-sex couples, and a funeral home could deny funeral services to a same-sex spouse, as one did not long ago. For this and other reasons, the status (being LGBT) versus conduct (marrying) distinction the cakeshop relies on is chimerical. Gay people marry other gay people, and a new, constitutionally-based objection to conduct and marriage could be wielded far more broadly.

Looking beyond this case, it is clear that although the present controversy may focus on marriage and same-sex couples, if the Supreme Court were to accept a rule that simply providing commercial goods or services conveys a message of approval and endorsement that cannot be compelled, then public-accommodations protections will evaporate and many will suffer. Would vendors who sew gowns, design place-setting graphics, perform music, cater the food or decorate the wedding limousine have free rein to deny wedding services to Jewish and Muslim couples who do not accept Jesus Christ as their lord and savior, to Christians who do, and to those customers lacking any faith at all? Whether a product or service is wedding-related or not, if its production, sale or delivery is seen as freighted with messages of approval and endorsement, then many or most places of public accommodation can be swept in.

Faced with the real threat that businesses will be emboldened to deny service beyond the facts of this case, we know only that DOJ (rightly) believes “eliminating private racial discrimination” is a sufficient interest to justify application of a public-accommodation law to an objector. Many of us would have hoped that DOJ would recognize that gender, religion, national origin and sexual orientation are also important interests, as do many state legislatures. Yet the federal government has all but stated that preventing harm to gay people is barely an interest at all.

Nor is there any reason to think that this rule would not reach all civil-rights laws. Why, for example, would laws prohibiting sex discrimination still foreclose a male business owner from refusing to hire women, married or unmarried, if his religion instructs him that they should be at home and not in the workforce, or if he asserts that requiring him to hire women would express something contrary to his beliefs? And what of the landlord who renovates and rents apartments?

To support its argument that requiring a baker to make a wedding cake is compelled speech, DOJ maintains that each product has a life of its own that carries messages of its originator, who may therefore be seen as compelled to “literally” or “figuratively” participate in the event when they have made a product “that performs an important expressive function in the ceremony.” The cakeshop and DOJ rely heavily on Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston and Boy Scouts of America v. Dale. But a for-profit business open and selling goods to the general public is neither a private parade marching to make a point, like the veterans groups organizing the St. Patrick’s Day parade in Hurley, nor a private association like the Boy Scouts, and the government can regulate businesses like the former in a way it cannot regulate the latter.

If a product does not express a particular, discernible message, or is understood not to be the vendor’s speech, the cakeshop’s compelled-speech-and-expression claim simply fails. To repeat: When a couple buys a wedding cake, it is for their wedding, their celebration, and everyone knows it is their messages that are communicated by their event and its trappings. “Customizing” products and services for events is typical because customers of all kinds want their events to feel special, to be their own. Indeed the cakeshop acknowledges that before designing a cake, a store representative “meets with the couple to learn their desires, personalities, preferences, and wedding details.” Why – other than to be sure that the cake conveys the couple’s beliefs, ideas and messages? How then can the cakeshop ask the Supreme Court to regard the cake as the embodiment of its owner’s personal beliefs and a distinct message of approval for the customers and their celebration? When all is said and done, a beautiful cake remains a cake. And discrimination remains discrimination.

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