December Argument Schedule & Orders

On Friday, the Court released the argument calendar for the December sitting, which will begin on November 27. Perhaps the most high-profile case is Masterpiece Cakeshop v. Colorado Civil Rights Commission, scheduled for December 5. Masterpiece Cakeshop, involves a Colorado bakery that refused to sell a wedding cake to Charlie Craig and David Mullins in 2012, because of the sincerely held religious objection to same-sex marriage held by the bakery owner. Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Division, alleging that the refusal was a form of sexual orientation discrimination prohibited by the Colorado Anti-Discrimination Act (CADA).

The Colorado Civil Rights Commission found that the refusal was prohibited discrimination and issued Phillips an order requiring that Masterpiece Cakeshop alter company policy to comply with CADA. Philips contends that CADA, by compelling him to create expression that violates his sincerely held religious beliefs about marriage, violates the free speech or free exercise clause of the First Amendment.

The case is highly contentious and has been discussed extensively ever since the Court granted certiorari to the case on June 26, 2017. The Department of Justice filed an amicus brief September 7 in support of the bakery, arguing that Colorado’s public accommodation law infringes on Phillip’s freedom of expression, and that “eradicating private individuals’ opposition to same-sex marriage” is not a uniquely compelling interest that justifies this infringement. Garrett Epps from The Atlantic notes, by referencing an observation by Georgetown Law Professor Martin Lederman, that “this appears to be the first time ever—in 10-20 such cases—that the U.S. government told the Court it supports a constitutional exemption from an anti-discrimination statute.” Some,like Professor Richard Garnett of Notre Dame Law School, however, argue at SCOTUSblog that “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.”

On November 29, the Court will hear another significant case, Carpenter v. United States.The issue in Carpenter is whether the warrantless seizure of cell phone records from a cell phone towers, revealing the location and movements of defendants in connection to a string of robberies is unconstitutional under the Fourth Amendment. Defendant-appellants Timothy Carpenter and Michael Sanders were convicted of numerous robberies, among other charges, after the FBI collected historical cell-site records demonstrating that the defendants’ cell phones transmitted signals to cell towers near the locations of the robberies at the times that the robberies happened. Carpenter and Sanders contend that the trial court should have excluded this evidence because investigators procured the records without a warrant, in violation of the Fourth Amendment. Orrin Kerr, a professor at George Washington University Law School, describes Carpenter as “probably the biggest Fourth Amendment case that the court has had in at least five or six years.” According to Kerr, a former clerk to Justice Kennedy, “this is the first case that has touched on Fourth Amendment rights, what is a search in the context of new technologies, in several years and the one that is getting to the fundamental basis of what is constitutional.”

And on December 4, the Court will hear Christie v. NCAA (consolidated with NJ Thoroughbred Horsemen’s Association v. NCAA). Christie concerns whether the Professional and Amatuer Sports Protection Act (“PASPA”), a federal statute that prohibits modification or repeal of state-law prohibitions on sports gambling, unconstitutionally commandeers the regulatory power of states, in violation of the Tenth Amendment. The New Jersey legislature enacted SB 2460 in 2014, which partially repealed certain prohibitions on sports gambling. Five sports leagues (the NCAA, the NFL, the NBA, the NHL, and the MLB) collectively sued, arguing that the state law is a violation of PASPA, while the New Jersey parties (including New Jersey Governor Chris Christie) argue that PASPA unconstitutionally commandeers the state regulatory scheme for overseeing sports gambling. While the suit centers on the limits of federal and state power, David Purdum at ESPN predicts that the outcome of this case “will not only shape the future of American sports betting, but also begin to divvy up a market that experts say could be worth as much as $5.8 billion in annual revenue.”

The remaining cases for the December sitting are Oil States Energy Services v. Greene’s Energy Group and SAS Institute Inc. v. Matal (both to be argued on November 27); Cyan, Inc v. Beaver County Employees Retirement Fund and Digital Realty Trust v. Somers (both to be argued on November 28); Rubin v. Iran (December 4); Marinello v. United States (December 5); and Murphy v. Smith (December 6).

In addition to announcing the December argument calendar, the Court issued several Orders last week. On Wednesday, October 4, the Court granted an application to vacate the injunction that the Eleventh Circuit entered in the execution of Jeffrey Lynn Borden. Alabama was scheduled to execute Borden on Thursday, October 5, but on October 2, the Eleventh Circuit reversed the district court’s dismissal of Mr. Borden’s claim that the state’s execution protocol is unconstitutional cruel and unusual punishment. The Alabama Attorney General’s office appealed the Eleventh Circuit’s reversal. While Justices Ginsburg, Breyer, and Sotomayor would have denied the application to vacate, the Court vacated the injunction. U.S. District Court Judge Keith Watkins subsequently issued a stay of execution on Thursday, October 5, which the state Attorney General’s Office has not yet appealed.

On Thursday, October 5, the Court issued several orders pertaining to last-minute appeals and petitions which Florida death row inmate Cary M. Lambrix filed. Hours before his scheduled execution on Thursday, October 5, Lambrix filed a final application for a stay of execution and a petition for a writ of habeas corpus, which the Court denied.

This post was drafted by ISCOTUS Fellow Elisabeth Hieber, Chicago-Kent Class of 2019, edited by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Professor Carolyn Shapiro.

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