Transcript Of Supreme Court Arguments In California FACT Act Case Is Now Available

The full transcript of today' oral arguments (see prior posting) in National Institute of Family and Life Advocates v. Becerra is now available. Reporting on the arguments, Politico said in part:

A surprisingly broad array of justices expressed serious concerns that the Reproductive FACT Act intrudes on First Amendment rights, by requiring such centers to include in their ads a state-provided notice in as many as 13 languages offering contact information about abortion services and other options.

Supreme Court Will Hear Arguments Today In California FACT Act Challenge

The U.S. Supreme Court will hear oral arguments today in National Institute of Family and Life Advocates v. Becerra. In the case, the U.S. 9th Circuit Court of Appeals upheld  California's FACT Act which requires licensed pregnancy counseling clinics to disseminate a notice on the existence of publicly-funded family planning services, including contraception and abortion.  Unlicensed clinics must disseminate a notice that they and their personnel are unlicensed. (See prior posting.) The Supreme Court granted certiorari only on the free speech issues in the case, excluding review of the free exercise question. (See prior posting.)  SCOTUSblog's case page has links to all the briefs filed in the case, as well as to further analysis.

Another 3rd Travel Ban Cert. Petition Filed

As previously reported, last month the U.S. Supreme Court granted certiorari in Trump v. Hawaii, a challenge to the third version of President Trump's travel ban.  In light of that, plaintiffs who were largely successful in a similar challenge in the 4th Circuit (see prior posting) have now filed a petition for certiorari (full text) with the Supreme Court, telling the Court:

The court of appeals denied the cross-appeal below, which argued that the preliminary injunction should not have been limited to individuals with a bona fide relationship with a U.S. person or entity.  This petition seeks certiorari on that question, which is not presented in Hawai‘i. In addition, this petition raises the same four questions already before the Court in Hawai‘i, and requests that the cases be consolidated once again.

Muslim Advocates issued a press release announcing the filing of the cert. petition.

Supreme Court Defines Prisoner Contributions To Attorney Fee Awards

The U.S. Supreme Court yesterday in Murphy v. Smith, (Sup. Ct., Feb. 21, 2018), in a 5-4 decision, decided on the proper interpretation of a statutory provision relating to award of attorneys' fees in damage actions by prisoners, including actions alleging a violation of an inmate's First Amendment free exercise rights.  At issue is the provision in 42 USC § 1997e(d) relating to the amount an inmate must contribute out of his or her recovery toward attorneys' fees when the inmate has been awarded such fees.  The majority, in an opinion by Justice Gorsuch, held that the statutory reference to the inmate's contribution of up to 25% of the monetary judgment toward satisfying the award does not give the trial court discretion to require less than 25%.  Justice Sotomayor, joined by Justices Ginsberg, Breyer and Kagan, dissented arguing that the statute permits the exercise of discretion in determining the percentage (up to 25%) of a judgment that must be applied toward an attorneys' fee award.

Supreme Court Review Sought In Prisoner Free Exercise Case

Yesterday, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Hoever v. Belleis.  In the case, the 11th Circuit held that denial of an English language Bible and devotional materials to an inmate for 20 days while in disciplinary confinement did not impose a substantial burden on his religious exercise. (See prior posting.)  The petition for review argues that the 11th Circuit created a circuit split by holding that only a burden on a practice mandated by a prisoner’s faith can constitute a substantial burden. It also seeks review on the issue of the availability of compensatory damages in prisoner cases alleging 1st Amendment violations.

Supreme Court Refuses Review In Standing Case Challenging Mississippi's Conscience Law

The U.S. Supreme Court today denied certiorari in Barber v. Bryant, (Docket No. 17-547, cert. denied 1/8/2018) and Campaign for Southern Equality v. Bryant, (Docket No. 17-642, cert. denied 1/8/2018). (Order List.)  In the companion cases, the U.S. 5th Circuit Court of Appeals dismissed challenges to Mississippi's Conscience Protection Act for lack of standing. The law, Mississippi's HB 1523, protects against discriminatory action by state government anyone who acts in accordance with his or her religious beliefs or moral convictions that marriage is only between one man and one woman, sexual relations are reserved to such marriages, and gender is determined by anatomy and genetics at the time of birth. (See prior posting.) An en banc rehearing was denied by the 5th Circuit, over the dissent of two judges.  National Law Journal reports on the Supreme Court's action which leaves the law in effect.

Government Seeks Supreme Court Review of Third Travel Ban

The Justice Department last week filed a petition for certiorari (full text) in Trump v. State of Hawaii, a challenge to the President's third travel ban.  In the case, the U.S. 9th Circuit Court of Appeals held that the third version of President Trump's travel ban is inconsistent with the Immigration and Nationality Act. (See prior posting.)  The 9th Circuit avoided deciding the question of whether the Proclamation violates the Establishment Clause. SCOTUSblog has more on the cert. petition and the background of the case.

Transcript of Oral Arguments In Masterpiece Cakeshop Is Now Available

The transcript (full text) of today's oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is now available.  Amy Howe at SCOTUSblog has posted an analysis of the argument.  She speculates that Justice Kennedy holds the key vote. She also observes:

[M]any of the more liberal justices’ questions seemed to focus on trying to convince their more conservative colleagues that, even if they might be inclined to vote for Masterpiece, it would be next to impossible to write a ruling for the baker that did not, as Justice Stephen Breyer put it, “undermine every civil rights law since year 2.”

SCOTUS Will Hear Arguments In Masterpiece Cakeshop Case Today

The U.S. Supreme Court this morning will hear oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the widely followed case that pits the religious and free speech rights of a Christian bakery owner against the rights of a same-sex couple under Colorado's public accommodation law.  SCOTUSblog has a preview of the arguments, as well as a case page with links to the many briefs filed in the case, to the opinion below and to extensive commentary.  The high profile which the case has assumed is encapsulated in this deck headline from the Christian Science Monitor:

As evidenced by the people who began camping outside the high court for a seat at Tuesday’s oral arguments, the Masterpiece Cakeshop case seems destined to be a historic ruling – with both sides warning that defeat could bring potentially seismic consequences.

Daily Signal has a profile of one of the lawyers who will be arguing before the court today.  The transcript of the oral arguments should become available later today.  I will post a link to it at that time.

Supreme Court Denies Review In School Board Prayer and Funeral Picketing Cases

Today the U.S. Supreme Court denied certiorari in American Humanist Association v. Birdville Independent School District, (Docket No. 17-178, cert. denied 11/27/2017). (Order List).  In the case, the 5th Circuit upheld a school board's practice of opening its meetings with presentations from students, which often involve a prayer.  It held that legislative prayer cases, not the decisions regarding school prayer, govern this situation. (See prior posting.)

The Supreme Court today also denied review in Phelps-Roper v. Ricketts, (Docket No. 17-427, cert. denied 11/27/2017). (Order List).  In the case the 8th Circuit upheld Nebraska's Funeral Picketing Law against both facial and as-applied challenges brought by members of the Westboro Baptist Church. (See prior posting.)

Cert. Petition Filed In Suit Over Police Investigation Interference With Prayer

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in Sause v. Bauer, (cert. filed 11/17/2017).  In the case, the U.S. 10th Circuit Court of Appeals dismissed on qualified immunity grounds a suit for damages alleging that police who were investigating a noise complaint violated plaintiff's 1st Amendment rights when an officer who had come to her home ordered her to get up and stop praying. (See prior posting.)  First Liberty issued a press release announcing the filing of the petition for review.

Trump Adds 5 Names To List of Potential Supreme Court Nominees

On Friday, just before White House Counsel Donald F. McGahn delivered the Barbara K. Olson Memorial Lecture at the Federalist Society National Lawyers Convention, the White House issued a release announcing the addition of five names to the President's list of potential Supreme Court nominees. Among the five is Amy Coney Barrett who on Oct. 31 was confirmed for a position on the 7th Circuit after controversy over her views on reproductive rights, abortion, LGBTQ rights, as well as controversy over her statement in a 1988 law review article urging Catholic judges to recuse themselves in capital cases because of Catholic teaching opposing capital punishment. (See prior posting.) Other new names on the President's list are: Britt C. Grant (Georgia Supreme Court Justice); Brett M. Kavanaugh (Judge on the D.C. Circuit);  Kevin C. Newsom (11th Circuit Judge); and Patrick Wyrick (Oklahoma Supreme Court Justice).  The Hill reports on these developments.

Cert. Filed In Challenge To Abortion Clinic Anti-Noise Law

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in March v. Mills, (cert. filed 11/6/2017).  In the case, the U.S. 1st Circuit Court of Appeals upheld a provision of the Maine Civil Rights Act that prohibits a person making noise that can be heard within a health care facility where the intent is to jeopardize health or interfere with the delivery of health services.  In March v. Mills, (1st Cir., Aug. 8, 2017), the appeals court rejected a constitutional challenge brought by an abortion protester who is the pastor and co-founder of a church whose mission was described as including "plead[ing] for the lives of the unborn at the doorsteps of abortion facilities." The 1st Circuit held that the Noise Provision is a content-neutral time, place and manner restriction. Thomas More Law Center issued a press release announcing the filing of the petition for review.

Amicus Briefs In Masterpiece Cakeshop Now Available Online

The Masterpiece Cakeshop case will be argued before the Supreme Court on Dec. 5. Over 50 90 amicus briefs have been filed in the case. SCOTUSblog's case page has links to them, as well as to briefs of petitioner and respondent and to commentary on the case. The case pits the Colorado Civil Rights Commission against a baker who, for religious reasons, refused to create a wedding cake for a same-sex couple.

Supreme Court Denies Review In 10 Commandments Case

The U.S. Supreme Court today denied certiorari in Bloomfield, NM v. Felix, (Docket No. 17-60, cert. denied 10/16/2017) (Order List).  In the case, a 3-judge panel of the 10th Circuit found that a Ten Commandments monument on a city hall lawn violates the Establishment Clause. (See prior posting.) The full 10th Circuit, over the dissent of two judges, denied en banc review. (See prior posting.) ADF issued a press release on the Supreme Court's denial of review.

Cert Petitions Filed In Two Religious Liberty Cases

Last week, petitions for certiorari were filed with the U.S. Supreme Court in two cases of interest. On Oct. 10, a cert. petition (full text) was filed in Barber v. Bryant.  In the case, the U.S. 5th Circuit Court of Appeals dismissed for lack of standing two suits challenging Mississippi's HB 1523 which protects against discriminatory action by state government anyone who acts in accordance with his or her religious beliefs or moral convictions on three topics.  The protected beliefs are that marriage is only between one man and one woman, sexual relations are reserved to such marriages, and gender is determined by anatomy and genetics at the time of birth.  (See prior posting). An en banc rehearing was denied by a vote of 12-2. (See prior posting.) Washington Blade reports on the petition for review.

On Oct. 12, a petition for certiorari (full text) was filed in Rowan County, North Carolina v. Lund.  In the case,  the U.S. 4th Circuit Court of appeals sitting en banc held by a 10-5 vote that the prayer practices of the Rowan County Board of Commissioners, in which commissioners themselves deliver invocations, violate the Establishment Clause. (See prior posting.)  WBTV reports on the filing of the cert. petition.

Supreme Court Hears Oral Arguments In Alien Tort Statute Case

Today the U.S. Supreme Court heard oral arguments (full transcript of arguments) in Jesner v. Arab Bank, PLC.  At issue in the case is whether corporations may ever be held liable under the Alien Tort Statute, which allows aliens to sue in U.S. courts for a tort committed in violation of the law of nations or a treaty of the United States. Circuit Courts are split on the issue.  The underlying claims in this lawsuit are described in the petition for certiorari:

Petitioners are victims of terrorist attacks ... that took place between 1995 and 2005 in Israel, the West Bank, and Gaza. In five separate lawsuits ... they alleged that Arab Bank knowingly and intentionally financed this terrorism through activities in New York that led to the suicide bombings and other attacks that caused petitioners’ injuries.... Petitioners also allege that the Bank, through the involvement of its New York branch, knowingly distributed millions of dollars to terrorists and their families on behalf of terrorist front groups.

USA Today reports on today's oral arguments.

Supreme Court Dismisses One Travel Ban Case As Moot

In an Order (full text) issued yesterday, the U.S. Supreme Court dismissed as moot Trump v. International Refugee Assistance Project, the challenge to President Trump's second travel ban. As explained by a USA Today report:

"We express no view on the merits," the justices said in a one-page order.

The decision effectively wipes the record clean in the U.S. Court of Appeals for the 4th Circuit, one of two federal appeals courts that had struck down major portions of Trump's travel ban. That case began in Maryland.

A separate case from the 9th Circuit, based in California, remains pending because it includes a ban on refugees worldwide that won't expire until later this month. But the Supreme Court is likely to ditch that case, which began in Hawaii, as well....

Justice Sotomayor dissented, saying that instead she would dismiss  the writ of certiorari as improvidently granted. This would have maintained the 4th Circuit's opinion as precedent.

Trump Issues New, More Targeted Version of Travel Ban

President Trump yesterday issued a Proclamation (full text) (press release) (White House background document) setting out a more targeted version of his travel ban.  The travel restrictions in the prior ban expired yesterday, while the refugee restrictions in the prior ban extend to Oct. 24.  The new ban focuses around a "baseline for the kinds of information required from foreign governments" to allow U.S. vetting of immigrants and non-immigrants. The Administration determined that 7 nations fail to meet these standards: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen, and travel to the U.S. by nationals of those countries is largely banned. (Though restrictions on Venezuela are limited to travel here by government officials.) The Administration also found that Iraq does not meet the baseline standards, but excludes its nationals from new restrictions. A ban is placed on admission of immigrants from Somalia, even though it technically meets the baseline criteria. The Proclamation separately sets out the scope of the restrictions on each of the covered nations, tailoring each to the individual situations. (Fact Sheet; FAQs).

As reported by Reuters, these developments are likely to have an effect on the challenges to the prior travel ban pending in the courts.  The Supreme Court is scheduled to hear oral arguments on those challenges on Oct. 10. (See prior posting.) Yesterday the Administration asked the Supreme Court to consider receiving additional briefs to address the effects of the new Proclamation on the pending cases. Washington Post has additional reporting on the new Presidential Proclamation.

UPDATE: In an Order (full text) dated Sept. 25, the U.S. Supreme Court ruled:

The parties are directed to file letter briefs addressing whether, or to what extent, the Proclamation issued on September 24, 2017, may render cases No. 16-1436 and 16-1540 moot. The  parties should also address whether, or to what extent, the  scheduled expiration of Sections 6(a) and 6(b) of Executive Order No. 13780 may render those aspects of case No. 16-1540 moot.

Report Claims DOJ Was Divided Over Whether To File Amicus Brief In Masterpiece Cakeshop

As previously reported, earlier this month the Department of Justice filed an amicus brief in the Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, siding with the Christian bakery owner who refused to design and create a cake for a same-sex wedding.  Last week National Law Journal reported that the Department was divided on whether to file an amicus brief, although a Justice Department spokesperson denied  the report.The paper says:

Senior lawyers in the civil and civil rights divisions and within the U.S. solicitor general’s office said the department should not take a position in the case...

[Acting Solicitor General Jeffrey] Wall was the lead attorney among what former Justice Department lawyers said was an unusually large group of attorneys—eight in all—whose names appeared on the cover of the court filing....

Absent from the government’s Masterpiece Cakeshop brief was any career deputy solicitor general, whose name routinely appears on amicus and merits filings from the Justice Department.