One blockbuster day down, one to go! Supreme Court Brief is back with a quick look at what is the most hotly debated case of the term, at least judging by the flood of amicus briefs. The high court's adjustable lectern will undoubtedly be going up and down as four lawyers try to capture the magic five votes in Masterpiece Cakeshop v. Colorado Civil Rights Commission. We highlight the arguments with an added dose of background drama between two of the four lawyers; share some thoughts on Monday's sports betting challenge; and launch Recusal Watch, an occasional look at interesting or perplexing recusals by the justices. We’d like this to be a two-way conversation, so reach out to us, Tony Mauro at email@example.com or Marcia Coyle at firstname.lastname@example.org. We welcome your views on what the court is doing and not doing, tips about interesting petitions, briefs, books and articles, and predictions about forthcoming opinions, vacancies, nominations—anything on the court’s horizon.
Let Them Eat Cake?
It's really not just about the cake, or to be more specific, the wedding cake for a same-sex couple at the heart of what has become the most controversial case of the Supreme Court term. Masterpiece Cakeshop is about the future effect of anti-discrimination laws that protect racial and other minorities when challenged on the basis of the First Amendment. That broader concern undoubtedly is the reason for the outpouring of amicus briefs—more than 80—from business, civil rights, religious and other groups across the ideological spectrum. As in the Supreme Court's landmark 2015 same-sex marriage decision, lots of big law firms have joined the legal fight, including Hogan Lovells; Skadden, Arps, Slate, Meagher & Flom; Covington & Burling; Ropes & Gray; Akin Gump Strauss Hauer & Feld; Munger, Tolles & Olson; and Perkins Coie. Not the usual two lawyers, but four will take turns at the lectern this morning, and two of them share some high-level drama unfolding in another case. But first, the case at hand … Colorado baker Jack Phillips, who refused to bake a wedding cake for Charlie Craig and David Mullins because of his religious objections to same-sex marriage, was found in violation of the state's public accommodations law. His counsel, Kristen Waggoner of Alliance Defending Freedom, argues that applying the law to him violates his First Amendment speech right because it compels him to create an artistic expression celebrating same-sex marriage, and it also violates his exercise of religion right. Waggoner, senior vice president of the U.S. legal division of ADF, is making her first high court argument. ADF, a conservative Christian legal organization, actively opposes through litigation, lobbying and legislation, same-sex marriage and related issues here and abroad. Colorado Solicitor General Frederick Yarger, a former lawyer with Gibson, Dunn & Crutcher, is making his third Supreme Court argument. He argued two cases last year: Nelson v. Colorado and Pena-Rodriguez v. Colorado. Yarger's argument is straightforward: "This case has nothing to do with the artistic merits of wedding cakes. It is instead about the integrity of a 150-year-old principle: When a business opens its doors to the general public, it may not reject customers because of who they are." In his official high court debut as solicitor general of the United States, former Jones Day partner Noel Francisco, sharing argument time with Waggoner, makes the Trump Administration's argument that the state law violates the Constitution because it compels Phillips to design and create a custom wedding cake for a same-sex couple. His argument focuses solely on the compelled speech claim and does not address Phillips' religion claim. The government's participation in the case came despite objections by senior lawyers in the civil and civil rights divisions and the office of solicitor general, sources told The National Law Journal last fall. And it followed by two months, a closed-door meeting between Attorney General Jeff Sessions and ADF, the group representing the Colorado baker. Oh, and do we even have to say this? Everyone will be watching and listening to Justice Anthony Kennedy, the justice closest to a First Amendment absolutist and author of the court's landmark gay rights rulings. Now about that background drama. Francisco's other opponent during arguments will be David Cole, national legal director of the American Civil Liberties Union and counsel to the same-sex couple. Cole, sharing Yarger's argument time, is making his first appearance in the high court as the ACLU's top lawyer and his fifth Supreme Court argument. Francisco and Cole are at odds over the lawyering in a recent appellate case involving a pregnant immigrant teen who sought an abortion. Francisco on Nov. 3 filed a petition for review asking the justices to vacate an unsigned Washington federal appeals court decision that said U.S. health and immigration officials could no longer block the teen’s abortion, which she had shortly after the ruling. Francisco’s petition accused the teen’s counsel— lawyers at the American Civil Liberties Union—of misleading the government about the scheduling of the teen’s abortion which, in turn, prevented the government from seeking the justices’ review. Francisco suggested the justices consider imposing sanctions on the ACLU lawyers. Late Monday, the ACLU, represented by Sidley Austin's Carter Phillips, responded in a brief filed in the high court. Phillips called Francisco's accusations "baseless and extraordinary." Two heavyweights in the ring. Stay tuned.
Sports Betting Day at the Supreme Court
Everyone expected Chris Christie to attend Monday's argument in the sports betting case that bears his name: Christie v. NCAA. But spectators and justices did a double take when they saw him sitting in the front row of the Supreme Court bar section, not far from his legal team. It turned out that the New Jersey governor, a Seton Hall University School of Law-bred lawyer and former U.S. attorney, had never signed up for membership in the Supreme Court bar, and he decided Monday was the day to do it. His lawyer in the case, Ted Olson of Gibson, Dunn & Crutcher, moved for his admission. In case you were wondering, Olson also moved the admission of James DiGiulio, Christie's chief counsel, Stuart Feinblatt and Peter Slocum from the New Jersey attorney general's office, and David Rebuck, director of the Division of Gaming Enforcement in New Jersey. Where Christie was situated also put him right next to the press section at the court, and inches away from NPR's longtime Supreme Court correspondent Nina Totenberg. Never media-shy, Christie soon engaged Totenberg and others in a mini-news conference before the proceedings began … So, how did it go for Christie? As we wrote on Monday, the general tenor of the argument seemed to favor the Garden State in its long fight to do away with the 1992 Professional and Amateur Sports Protection Act, which bars most states from allowing sports gambling. Olson seemed to gain traction with an argument that wasn’t stressed in his brief: that the federal government can pre-empt state actions only when it actually imposes a comprehensive regulatory scheme of its own that would render state actions inconsistent. Deputy SG Jeffrey Wall, who was defending the law, called that a "made-up principle," but it seemed to stick. Paul Clement got off on the wrong foot, it seemed, by reciting what the federal law actually does—factual background, rather than an argument. Clement represented the sports leagues that want the law to stick around. Advocates always say the opening remarks are crucial, because justices are likely to quickly change the subject by asking questions. Sure enough, Justice Anthony Kennedy intervened and asked a question and they were … off to the races. What does a Christie win mean? Richard Batchelder, a commercial litigator and sports lawyer at Ropes & Gray who attended the argument offered these thoughts: “If the Supreme Court rules in New Jersey's favor, as I expect it will, states around the country will want to capitalize on opportunities presented by the widespread public interest in sports betting. If this occurs, a number of businesses and other stakeholders such as professional sports leagues, colleges and universities will be facing complex legal, regulatory and reputational risks."
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➤➤ Trump Travel Ban Takes Effect … For Now: The high court late Monday—over the objection of Justices Ruth Bader Ginsburg and Sonia Sotomayor—allowed the Trump administration's travel ban to go into full effect pending the outcome of hearings this week in the Fourth and Ninth circuit courts of appeals, or action by the justices on the government's petition for review. Read more here from the NLJ's Cogan Schneier. ➤➤ No Further Clarity: The Supreme Court, in a setback for the gay rights community, declined to take up Houston's challenge to a Texas Supreme Court decision holding that the landmark same-sex marriage decision does not require cities in the state to provide equal benefits to the same-sex spouses of their employees. Houston's petition was filed by the former chief justice of the state high court, Wallace Jefferson of Austin's Alexander Dubose Jefferson & Townsend. Defending the lower court ruling was former Texas solicitor general Jonathan Mitchell of Stanford Law School. ➤➤ Recusal Watch: Also on Monday’s orders list were several notable recusals by Justice Samuel Alito Jr., who still has considerable stock holdings, unlike most other justices. He recused in the denial of certiorari in the product liability case Cordis Corporation v. Barber and Dow Agrosciences v. Bayer Cropsciences, involving attorney fees in patent infringement cases. In the Cordis case, Johnson & Johnson was a party, and Alito’s latest financial disclosure form shows he has up to $50,000 in J&J stock. He also reported the same value of stock in DuPont, which since August has been known as DowDupont. Alito also took no part in the court’s request for the solicitor general’s views in Merck Sharpe & Dohme Corp. v. Albrecht, a federal pre-emption case. He owns up to $50,000 in Merck stock. (H/T to Gabe Roth of Fix the Court for help on recusals.)