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Supreme Court

All articles with the "Supreme Court" tag.

Published: Sat, 16 Dec 2017 00:00:00 -0500

Last Build Date: Sat, 16 Dec 2017 05:49:23 -0500


Justices Alito and Gorsuch Clash Over Cell Phones, Privacy, and Property Rights

Fri, 15 Dec 2017 10:40:00 -0500

It's common to think of the U.S. Supreme Court in terms of liberal vs. conservative decisions, liberal vs. conservative doctrines, and liberal vs. conservative justices. But in the recent oral arguments in Carpenter v. United States, one of the biggest disagreements occurred between two of the Court's conservative members, Samuel Alito and Neil Gorsuch. At issue in Carpenter v. U.S. is whether federal law enforcement officials violated the Fourth Amendment by acquiring the cell phone records of a suspected armed robber, Timothy Carpenter, without first obtaining a search warrant for those records. Thanks to the information they obtained, federal investigators were able to trace back Carpenter's whereabouts during the time periods when several of his alleged crimes were committed, placing him in the vicinity of those crimes. That information was used against Carpenter in court. The government insists that this warrantless search did not violate Carpenter's Fourth Amendment rights because, in the words of the Supreme Court's 1979 ruling in Smith v. Maryland, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." In other words, Carpenter has no Fourth Amendment right to privacy in his cell phone records because he voluntarily used his cell phone, thus voluntarily disclosing his location to the various cell phone towers that handled his calls. Throughout the November 29 oral arguments, Justice Alito was perhaps the most supportive of the government's position and the most critical of Carpenter's arguments. Justice Gorsuch, on the other hand, seemed extremely skeptical of the government's stance. Gorsuch even suggested at one point that the government's position was at odds with the "original understanding of the Constitution"—not exactly a compliment, since Gorsuch is a self-professed originalist. But the real clash occurred after Gorsuch asked Deputy Solicitor General Michael Dreeben to set aside the "third party" aspect of the debate and focus instead on whether the Fourth Amendment's protection against unreasonable searches of a person's "papers and effects" should apply to the sort of digital information at issue here. "Let's say I have a property right" in my cell phone records, Gorsuch began. "Wouldn't that" make the government's actions "a search of my paper or effect under the property-based approach" to the Fourth Amendment? Dreeben thought not. "It's not your paper or effect," he said. "The problem with your hypothetical," he told Gorsuch, "is that it creates a property interest out of transfers of information." Gorsuch tried again. "Under my hypothetical, you have a property right in this information." So, "would it be a search of my paper or effect" for the government to obtain the information, he asked the deputy solicitor general. "Yes or no." "I am not sure," Dreeben replied. "And the reason that I am not sure is there has never been a property right recognized in information that's conveyed to a business of this character." In fact, Dreeben went on to add, "it's a property right that resembles no property right that's existed." At this point, Justice Alito entered the conversation. His intervention can best be described as throwing a lifeline to Dreeben while at the same time trying to quash Gorsuch's entire line of questioning. "Yeah, Mr. Dreeben, along those lines," Alito said, "I was trying to think of an example of a situation in which a person would have a property right in information that the person doesn't ask a third party to create, the person can't force the third party to create it or gather it. The person can't prevent the company from gathering it. The person can't force the company to destroy it. The person can't prevent the company from destroying it." Dreeben followed Alito's lead. "Justice Alito, those are a lot of good reasons on why this should not be recognized as a property interest," he promptly replied. "I can't think of anything that would be characterized as a property interest with those traits. And it would be a—really a[...]

Senate Confirms Libertarian-Minded Jurist Don Willett to Federal Judgeship

Wed, 13 Dec 2017 18:20:00 -0500

(image) Today the U.S. Senate confirmed Texas Supreme Court Justice Don Willett to a seat on the U.S. Court of Appeals for the 5th Circuit, the federal appellate court whose jurisdiction covers federal districts in Louisiana, Mississippi, and Texas. Willett was confirmed by a vote of 50-47.

Since joining the Texas Supreme Court in 2005, Willett has made a name for himself as a sharp critic of overreaching state government.

In Patel v. Texas Department of Licensing Regulation (2015), for example, Willett skewered state officials for requiring eyebrow threaders to obtain an expensive government license before engaging in the entirely harmless act of threading cotton string through customers' eyebrows to remove old hair and skin.

"This case is fundamentally about the American Dream and the unalienable human right to pursue happiness without curtsying to government on bended knee," he wrote in Patel. "It is about whether government can connive with rent-seeking factions to ration liberty unrestrained, and whether judges must submissively uphold even the most risible encroachments." (Disclosure: Willett's Patel opinion favorably cited my book Overruled).

Willett proved to be equally scornful of the state's civil asset forfeiture regime. When the Texas Supreme Court declined to take up the civil asset forfeiture case Zaher El-Ali v. Texas in 2014, for instance, Willett faulted his colleagues for effectively failing to do their judicial duty. "Does our Constitution have anything to say about a 'presumed guilty' proceeding in which citizens are not arrested or tried, much less convicted, but are nonetheless punished, losing everything they've worked for?" he complained.

Now that Willett has been successfully confirmed to the federal bench, I fully expect that he will bring the same heightened degree of judicial scrutiny to the misdeeds of the federal government.

Related: From Bork to Willett: Is the Conservative Legal Movement Going Libertarian?

Did the Alabama Special Election Increase the Odds of Justice Kennedy's Retirement?

Wed, 13 Dec 2017 12:30:00 -0500

Doug Jones' upset victory over Roy Moore in the Alabama Senate special election brings Senate Democrats one step closer to retaking control of the U.S. Senate. Once Jones is seated, Senate Republicans will only retain a narrow 51-49 majority in the chamber. This will undoubtedly make it even more difficult for Republicans to get anyhting done, and increase the chances that Democrats take over the Senate in the 2018 elections. But could this election result also affect the composition of the Supreme Court?

There has been rampant speculation over whether Justice Anthony Kennedy, the Supreme Court's swing justice, will retire next spring. Pepperdine's Derek Muller speculates that the Jones victory may have increased the odds. As Muller notes, if Democrats take the Senate, they are extremely unlikely to allow President Trump to fill a vacant Supreme Court seat. Ed Whelan concurs. This could bother Justice Kennedy. Whether or not Justice Kennedy likes the idea of President Trump picking his successor, he may like the idea of his seat remaining vacant for an extended period of time even less. This would mean the time is now.

I am also not sure Justice Kennedy would be particularly troubled by having the Trump Administration select his successor. Although Justice Kennedy is not as conservative as some of Trump's potential picks, I suspect he has been quite impressed by the overall caliber and qualifications of the President's appellate judicial nominations, including that of Neil Gorsuch, who worked for Kennedy on the Court. (District court nominations are another matter, but these are largely a product of negotiation and compromise with local Senators, who often elevate political or other considerations ahead of qualifications.) Justice Kennedy is also no doubt aware that several of his former clerks, including Judges Raymond Kethledge (Sixth Circuit) and Brett Kavanaugh (D.C. Circuit) are on the President's Supreme Court short-list.

So here's a prediction -- a prediction worth no more than what it costs to access the VC on this paywall-free platform, but a prediction nonetheless. On June 26, 2018, Justice Kennedy announces the opinion for the Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission, striking a balance between free expression and non-discrimination principles. (June 26, it should be noted, was also the day upon which the Court announced its landmark gay-rights decisions in Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges -- all of which Justice Kennedy authored.) Then, likely having satisifed no one but himself, Justice Kennedy will announce his retirement from the Court.

If I'm right, remember it. If I'm wrong, well, I can't exactly offer you your money back now can I?

Everything You Wanted To Know About The Volokh Conspiracy: Podcast

Wed, 13 Dec 2017 09:05:00 -0500

"Intellectual honesty isn't just refraining from lying," says UCLA law professor Eugene Volokh in the newest Reason Podcast. "It's mentioning the arguments against you and explaining why you think that they're mistaken, as opposed to just omitting them, hoping that the audience isn't going to catch on." Volokh is the founder of The Volokh Conspiracy, "one of the most widely read legal blogs in the United States" [which] "has more influence in the field—and more direct impact—than most law reviews." The blog is written by mostly libertarian and libertarian-leaning law professors and court watchers, so we're excited as hell at Reason to now be hosting the Volokh Conspiracy on our website. It will remain editorially independent from Reason, though all of our readers will find much of interest and value in its content, which ranges from in-depth yet accessible glosses on the most important legal cases of the moment to disquisitions on pop culture. Volokh explained to me a few weeks ago that the blog began chafing under its home at The Washington Post partly because of that publication's paywall and partly because the newspaper would censor curse words even when they appeared in court documents that Volokh conspiracists were analyzing. When Volokh suggested would be a good home for the blog, I instantly agreed, only adding that we would insist on publishing curse words even when they weren't strictly necessary. In a wide-ranging interview about The Volokh Conspiracy, Volokh discussed the site's aims, why he thinks the government is sometimes right to force business owners to serve customers they don't like, and his high opinion (so far) of Donald Trump's appointments to the federal judiciary. In an age of deep polarization and intellectually mendacious debates, the Volokh Conspiracy remains a straight shooter when it comes to pursuing what its contributors see as the truth. "I hope even our libertarian readers appreciate that," says Volokh, "because then they know that when we do take a view that they agree with more, that's because we really, sincerely believe it and think it's the best argument, and sometimes perhaps they see that there are some points in which conservatives, or even liberals or moderates, might be more correct than the libertarian orthodoxy." Audio production by Ian Keyser. Subscribe, rate, and review the Reason Podcast at iTunes. Listen at SoundCloud below: src="" width="100%" height="300" frameborder="0"> Don't miss a single Reason podcast! (Archive here.) Subscribe at iTunes. Follow us at SoundCloud. Subscribe at YouTube. Like us on Facebook. Follow us on Twitter. This is a rush transcript. Please check any quotes against audio to ensure accuracy. Nick Gillespie: Today, we're talking with Eugene Volokh. He's a UCLA law professor and perhaps better known as the proprietor of The Volokh Conspiracy, a long-running legal group blog that I am excited to announce is coming to After being its own site and then being perched at The Washington Post for a long time, it is now coming to Eugene, thanks so much for talking to us. Eugene Volokh: Thank you very much for talking to me. Gillespie: Let's talk about The Volokh Conspiracy, which is obviously the premier group legal blog on the planet, I'm willing to say. There are, I guess, certain parts of Africa and some of the 'Stan' countries, I'm not familiar with their law blogs, but I'm pretty sure that The Volokh Conspiracy is still big there, too. What is the aim of The Volokh Conspiracy, for listeners or readers of Reason who may not be fully familiar with it? Volokh: Sure. We're mostly law professors, and we blog mostly about law. We also blog about whatever we please. Part of the aim is to have fun, for us[...]

A U.S. Citizen Suspected of Joining ISIS Has Been Held for Months Without Charges or a Lawyer

Tue, 12 Dec 2017 13:10:00 -0500

(image) An American citizen has been held in Iraq as an enemy combatant for several months, and the federal government has refused to reveal his name or to give him access to a lawyer.

According to the government, the man in question is a United States citizen who went to Syria and joined the Islamic State. Kurdish forces captured him in September, and he was handed over to the U.S. military on September 14. The authorities refuse to identify the man, and he has not been before a judge or in a courtroom since his detention.

The American Civil Liberties Union (ACLU) is attempting to intervene on the man's behalf. Yesterday U.S. District Judge Tanya Chutkan took a dim view of the Department of Justice's excuses for keeping the man hidden at a secret prison in Iraq.

The government is being secretive about the man's identity for a reason: The Justice Department is trying to push away legal challenges to his detention by claiming that nobody has legal standing to represent him. Nobody outside the feds knows who he is, therefore nobody could claim to represent him in court. That the government itself is the reason why we don't know his identity is just the icing on the cake.

The Washington Post describes Chutkan's reaction to the Justice Department's arguments:

"How on earth is the man to exercise his habeas rights," and contest being held, Chutkan at one point asked attorneys for the government at an hour-long hearing. The judge said their position suggested "an end-run" around the Constitution by saying in effect "You don't get to exercise your habeas rights until we decide what to do with you."

ACLU attorney Jonathan Hafetz called the government's position "Kafkaesque" and "a direct assault" on the authority established by the U.S. Supreme Court during George W. Bush's presidency for U.S. citizens suspected of belonging to al-Qaeda and other terrorist groups after the Sept. 11, 2001, attacks to challenge detentions after being captured on the battlefield.

The Supreme Court ruled in 2004 in Hamdi v. Rumsefeld that U.S. citizens being held as enemy combatants still retain the right to due process and to challenge their classifications as combatants. The Pentagon has disclosed (after being ordered by this judge to do so) that the man has requested a lawyer. That attorney has not yet been provided.

The behavior here by the Pentagon and Department of Justice is pretty repulsive, but the fact that the case involves a U.S. citizen who has apparently joined ISIS means it's not likely to inspire much public outrage. Nevertheless, the purpose of due process is to guarantee the rights of those accused of even the most egregious of crimes. This guy has a right to a lawyer and a court hearing.

Read more about the case from the ACLU here.

Supreme Court Won't Decide Whether Civil Rights Act Bans Anti-LGBT Discrimination

Mon, 11 Dec 2017 16:45:00 -0500

(image) The Supreme Court will not yet step in to rule on whether federal laws against discrimination on the basis of sex also forbid discrimination on the basis of sexual orientation.

Today the top court declined to hear a lawsuit from a woman in Georgia who claims she was harassed and forced out of her job as a hospital security guard because of her sexual orientation. Lambda Legal, the LGBT-issue-focused legal group that represented her, argues that this violated Title VII of the federal Civil Rights Act of 1964.

That law does not explicitly mention sexual orientation as a protected category, and for much of its history it was treated as though orientation were not included. Many states have chosen over time to add sexual orientation and sometimes gender identity to their own discrimination laws. But Georgia has not.

There is, however, a Supreme Court precedent—established in 1989's Price Waterhouse v. Hopkins—that discrimination based on whether a person expresses stereotypical masculine or feminine behaviors counts as sex-based discrimination. In this security guard's case and similar cases, lawyers argue that discrimination over sexual orientation is rooted in sex-based stereotypes about how males and females should look and behave, and that Title VII therefore covers it after all.

This view of the law does have some federal court rulings supporting it, but it has not made it up to the Supreme Court for a final decision. The interpretation played a significant role in the Obama administration's decision to tell schools they must accommodate transgender students' restroom and locker room choices. The issue of transgender accommodation in schools was heading to the Supreme Court, but when Attorney General Jeff Sessions took over, the Department of Justice reversed its stance, taking the position that federal discrimination laws do not cover sexual orientation or gender identity. Tthe Supreme Court subsequently punted the bathroom case back down to the lower courts, leaving the matter somewhat unsettled as a matter of law.

An 11th Circuit Court of Appeals panel rejected the Georgia woman's claim in March. In April, the 7th Circuit Court of Appeals, which covers Indiana, Illinois, and Wisconsin, determined the opposite—that the Civil Rights Act does prohibit discrimination against gays and lesbians. So there is a split in federal court rulings, making the Supreme Court's decision not to hear the case a bit of a surprise.

The Supreme Court did not indicate why justices are declining to take the case. A representative from Lambda Legal said in a statement that they're going to keep pushing to get the issue in front of the Supreme Court. Unless Congress passes a law settling the matter one way or the other, this seems likely to end up before the Supreme Court eventually.

Trump's Executive Order on Sanctuary Cities Flunks the Constitutional Test

Mon, 11 Dec 2017 09:35:00 -0500

(image) A federal judge in California recently declared President Donald Trump's executive order denying federal funding to so-called sanctuary cities to be unconstitutional. According to the opinion of U.S. District Judge William Orrick in Santa Clara v. Trump, and the related case of San Francisco v. Trump, the president's order violates multiple constitutional strictures, including the 10th Amendment and the separation of powers.

In a new op-ed for The Orange County Register, I explain why the judge got it right. Trump's executive order clearly violates the Constitution in several ways. Here's a portion of my argument:

The Trump administration may not want to hear it, but sanctuary cities are protected by both the Constitution and Supreme Court precedent. For starters, as the late Justice Antonin Scalia explained in Printz v. United States (1997), "the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program."

In other words, Trump's executive order flunks the 10th Amendment test that Scalia spelled out in Printz. State and local officials have every right to refuse to enforce federal immigration laws….

Trump's executive order [also] flunks the text of the Constitution itself, which, as Judge Orrick points out, "vests the spending powers in Congress, not the President."

Open your copy of the Constitution. You will find that the federal spending power is located in Article I, Section 8, which deals with the limited and enumerated powers of Congress. The limited and enumerated powers of the president are spelled out in Article II.

What this means is that Trump's executive order on sanctuary cities seeks to usurp a core congressional function. That makes it an unconstitutional violation of the separation of powers.

Read the whole thing here.

These Three Cases Define This Month at the Supreme Court Term: Podcast

Fri, 08 Dec 2017 14:45:00 -0500

The Supreme Court's docket is jammed with important cases if you care about individual liberty and limited government, none more so than Masterpiece Cakeshop v. Colorado, which pits religious expression against anti-discrimination laws, Carpenter v. United States, a case with massive implications for warrantless surveillance and tracking, and Christie v. NCAA, which challenges the ability of the federal government to "commandeer" state officials. In the latest Reason Podcast, Nick Gillespie talks with Senior Editor Damon Root, the author of the widely praised Overruled: The Long War for Control of the U.S. Supreme Court, about significance of these cases and their likely outcomes based on recent oral arguments. Root also analyzes how new Associate Justice Neil Gorsuch is likely to influence the decisions and how Donald Trump's picks for the federal judiciary are shaping up. Audio production by Ian Keyser. Subscribe, rate, and review the Reason Podcast at iTunes. Listen at SoundCloud below: src="" width="100%" height="300" frameborder="0"> Don't miss a single Reason podcast! (Archive here.) Subscribe at iTunes. Follow us at SoundCloud. Subscribe at YouTube. Like us on Facebook. Follow us on Twitter. This is a rush transcript—check all quotes against the audio for accuracy. Nick Gillespie: Today we're talking with Damon Root. He is a senior editor at Reason and he is also the author of Overruled: The Long War for Control of the US Supreme Court. And we're going to be talking with Damon today about the Supreme Court. The cases that are in front of it right now. And what is the likelihood that Neil Gorsuch, the newest associate justice is going to change the balance of power or maintain the status quo. Damon, thanks for talking. Damon Root: Thank you. Gillespie: So, what are the biggest and most important cases that you're tracking this season? Root: Well, I'd say the three biggest that are in front of the court right now, we have the gay marriage wedding cake case, we've got a case called Carpenter v. United States, which is about the Fourth Amendment and the warrantless acquisition of cellphone data by the government. The ability of the government to basically track your whereabouts with historical cellphone data, using records from cell towers and whether or not that's a Fourth Amendment violation. And then this case out of New Jersey, Christie versus NCAA, which is a 10th Amendment federalism case dealing with a federal law that basically makes it illegal for the states to legalize or in this case partially legalize, sports gambling. Gillespie: All right. Well, let's let's start with the gay wedding cake, and the baker. Should, as I think it was Austin Petersen the libertarian who is running for the Libertarian nomination, Libertarian Party nomination for president put it, should a Jewish baker have to bake, I guess, a homophobic Jewish baker have to bake a gay Nazi wedding cake? What is going on there? What are the basic facts of the case? And where do you see it going? And we just heard oral arguments about that as well. Root: The basic dispute is that this baker, his argument is that by being forced to create a custom wedding cake for a same sex marriage, that the government and the state, in this case the state of Colorado, is compelling him to speak. He has sincerely held religious beliefs and disapproves of same sex marriage for these sincerely held religious beliefs and to be compelled to create a custom wedding cake for gay marriage is his compelled speech. The government is forcing him to speak, he's an artist. He expresses his artistic view for the cake. Gillespie: Yeah. So is this a [...]

Texas Justice Don Willett Is One Step Closer to Being Confirmed to the Federal Bench

Thu, 07 Dec 2017 12:35:00 -0500

(image) Texas Supreme Court Justice Don Willett is now one step closer to being confirmed to a seat on the U.S. Court of Appeals for the 5th Circuit.

Earlier today, the Senate Judiciary Committee voted 11-9, along party lines, in favor of reporting Willett's nomination to the Senate floor. A final up-or-down vote by the full Senate on Willett's 5th Circuit nomination has not yet been scheduled.

Willett has served on the Texas Supreme Court since 2005 and has written a number of notable opinions dealing with highly contentious topics, such as the proper scope of state regulatory power and whether or not civil asset forfeiture is constitutional.

Yet during his confirmation hearings before the Senate Judiciary Committee last month, Willett faced almost no substantive questioning about either his legal views or his judicial philosophy. Instead, as I reported at the time, the Senate Democrats "beclowned themselves, wasting valuable Q&A time on a series of weak and frankly embarrassing questions about some jokes that Willett told on Twitter."

Today's hearing was equally devoid of substantive criticism of the nominee. Sen. Patrick Leahy (D-Vt.) once again brought up Willett's tweets. (Sen. Al Franken (D-Minn.), who had previously attacked Willett for the same tweets, failed to make an appearance today, though he did vote no by proxy.) And Sen. Sheldon Whitehouse (D-R.I.) delivered a lengthy rant that lumped Willett together with his fellow 5th Circuit nominee James Ho, as well as 8th Circuit nominee Steven Grasz, all of whom Whitehouse denounced as "terrible judges" that were specifically picked to do the bidding of a "dark money" cabal. If Whitehouse had any particular evidence to support his conspiracy theory, he kept it to himself.

Given the surprisingly feeble criticism that Willett has faced so far from the Democratic side of the aisle, it seems safe to predict that he will be readily confirmed to the federal bench.

Related: From Bork to Willett: Is the Conservative Legal Movement Going Libertarian?

Justice Dept. Opposes Mandatory Union Dues for Public Employees, Reversing an Old Position

Thu, 07 Dec 2017 11:05:00 -0500

The Department of Justice is recommending that the Supreme Court rule that public sector employees cannot be forced to contribute dues to unions, even when they're not members. The decision to submit an amicus brief supporting the employee in Janus v. American Federation of State, County, and Municipal Employees, Council 31 reverses the Justice Department's previous position under President Barack Obama. Mark Janus, who works for the Illinois Department of Healthcare and Family Services, objects to having to pay dues to a union whose political positions he disagrees with and whose spending he questions in order to keep his job. Public sector employee unions have historically been granted the authority to force payment of these dues under a 1977 Supreme Court decision, Abood v. Detroit Board of Education. The justification has historically been that even when public employees don't join the union, they are beneficiaries of the union's collective bargaining agreements. Requiring them to pay fees avoids the problem of "free riders." But public employee unions are notoriously political and their bargaining agreements are inherently connected to public policies about government spending choices. In a commentary at the Chicago Tribune last year, Janus wrote that he didn't support the behavior of the union that "represents" him, blaming it for supporting candidates and fiscal policies that are essentially bankrupting Illinois. The Justice Department's amicus brief, submitted yesterday, argues that public sector collective bargaining is inherently a political act, and therefore requiring people like Janus to pay dues is forcing them to subsidize political positions they may oppose: In the public sector, speech in collective bargaining is necessarily speech about public issues. Virtually every matter at stake in a public-sector labor agreement affects the public fisc, and therefore is a matter of public policy concerning all citizens. Moreover, issues like tenure for state employees, merit pay, and the size of the state workforce are about more than money: they concern no less than the proper structure and operation of government. To compel a public employee to subsidize his union's bargaining position on these questions is to force him to support private political and ideological viewpoints with which he may strongly disagree. The Janus case is essentially a redo of 2016's Friedrichs v. California Teachers Association, which presented similar arguments. The Supreme Court heard the case, but then Justice Antonin Scalia died and the court tied 4-4, leaving the status quo intact. Damon Root identified Janus as one of the three major cases to watch at the Supreme Court's current term. It may not have the public outrage factor that has driven the coverage of the Masterpiece Bakeshop gay wedding cake case, but the policy implications and the impact on public sector unions here if the Abood precedent were overturned would be huge.[...]

Kentucky Top Court to Consider Shop's Refusal to Print Gay Pride T-Shirts

Wed, 06 Dec 2017 13:15:00 -0500

(image) Kentucky's Supreme Court has agreed to hear a case about whether a T-shirt shop owner can decline to print gay pride shirts.

This case has been winding through the state courts for years. Way back in 2012, Hands On Originals refused to make T-shirts for a gay pride event in Lexington because the owner had a religious objection with printing anything with a pro-gay message. The city's public accommodation ordinances prohibit discrimination on the basis of sexual orientation, and the Lexington-Urban County Rights Commission ruled that the shop had violated this law.

As a matter of law, the commission was completely wrong. Forcing a T-shirt maker to produce a message and particular images for a customer is a clear and extremely obvious example of compelled speech.

Lower court rulings in Kentucky have already made it clear that antidiscrimination laws cannot be used to force a T-shirt company to print messages or symbols it finds offensive or disagree with. This is not a case about discriminating against gay people. It's a case where the government is trying to force a private business to distribute a message against its will.

Do not be surprised when the commission loses this case and loses badly. During the oral arguments yesterday for Masterpiece Bakeshop v. Colorado Civil Rights Commission, the justices spent much of the time debating and analyzing hypotheticals about whether cakes themselves are artistic expressions and therefore "speech." They discussed whether Colorado could force a baker to include a rainbow or a cross on a cake regardless of his or her feelings about such symbols.

Colorado had previously determined that a bakery could refuse to write on a cake Bible passages the bakers found to be offensive, so clearly even Colorado believes there were limits to what the government can compel bakers to make.

Even the justices who seem most inclined to rule against Masterpiece Cakeshop yesterday (by which I mean the more liberal justices, such as Ruth Bader-Ginsburg and Sonia Sotomayor) were clearly concerned with crafting a decision that protects people from being compelled to communicate a message they find offensive. The justices all recognized that the Masterpiece case is not merely about a business refusing to serve gay people; it was also a case about compelled speech and artistic expression.

Now, whether they'll decide that creationg a wedding cake is an act of artistic expression is very much up in the air. Yesterday's oral arguments, in my eyes, didn't give a solid indication of how the court will ultimately rule. And as Reason's Stephanie Slade (who attended the hearing) wrote yesterday, the ruling may well be very narrow and tailored to avoid establishing a broad precedent.

But in the Kentucky case, the precedents are already there: The government cannot use antidiscrimination laws to force a T-shirt shop to print messages it finds offensive. I would be absolutely shocked if the shop lost this case.

Chris Christie’s Situational Federalism

Wed, 06 Dec 2017 00:01:00 -0500

As a candidate for the 2016 Republican presidential nomination, Chris Christie promised to stop states such as Colorado from legalizing marijuana. As governor of New Jersey, Christie insists that the federal government has no business stopping his state from legalizing sports betting—an argument that got a mostly friendly reception at the Supreme Court on Monday. The most likely explanation for Christie's situational federalism is that he does not mind if people bet on sports but cannot abide pot smoking. But there is a legal rationale for Christie's apparent inconsistency, and it says a lot about the extent to which the federal government has usurped powers that the 10th Amendment reserves to the states. Christie is challenging the Professional and Amateur Sports Protection Act (PASPA), a 1992 statute that says states may not "authorize by law" any form of betting on athletic contests. PASPA, which was intended to "stop the spread of legalized gambling on sports events," exempted Nevada, which had legalized sports betting in 1949, and three states with sports lotteries. PASPA also allowed New Jersey to establish a system of regulated sports betting in Atlantic City, provided state legislators acted within a year. They missed that deadline, but they finally passed such a law in 2012, the year after New Jersey voters overwhelmingly approved a constitutional amendment authorizing it. Several sports leagues and the National Collegiate Athletic Association successfully challenged New Jersey's law under PASPA. In 2014 the state legislature tried again, selectively repealing New Jersey's ban on sports betting so that it no longer applied at casinos and racetracks. The U.S. Court of Appeals for the 3rd Circuit said the selective repeal was tantamount to licensing and therefore violated PASPA. The appeals court rejected New Jersey's argument that requiring it to maintain the ban on sports betting amounts to unconstitutional "commandeering" of state officials in the service of a federal policy goal. The Supreme Court was much more receptive to that claim on Monday, when at least five justices seemed inclined to agree that PASPA impermissibly intrudes on state prerogatives. It is well established that Congress has no authority to dictate the content of state laws. Still, as New Jersey's lawyer, Theodore Olson, was forced to concede, a valid federal law "preempts" any state law that's inconsistent with it. PASPA does not preempt state law, Olson said, because it is "a direct command to the states without any effort to regulate sports wagering." In other words, Congress could have imposed its own ban on sports betting, just as it imposed its own ban on marijuana, in which case any state law inconsistent with that prohibition would be preempted. As Olson noted, the issue of preemption is "in play right now" because marijuana has been legalized for medical use in 29 states, eight of which also allow recreational use. While merely eliminating state penalties for marijuana offenses does not violate the Controlled Substances Act, licensing marijuana suppliers arguably does. That might be what Christie had in mind when he promised to "crack down and not permit" marijuana legalization if elected president. "Marijuana is an illegal drug under federal law," Christie told radio host Hugh Hewitt in 2015, "and the states should not be permitted to sell it and profit from it." Can it really be true that the Constitution allows federal interference with state policy as long as Congress frames it as preemption rather than a "direct command"? Only if you accept the Supreme Court's implausible understanding of the power to "regulate commerce…among the several states," which supposedly authorizes Congress to prohibit sports betting, cannabis consumpti[...]

Can States Compel You to Bake a Cake Against Your Will? The Supreme Court Will Decide.

Tue, 05 Dec 2017 16:05:00 -0500

If cake artistry counts as speech, what doesn't qualify—and how do you tell the difference? That was the essence of the question the Supreme Court asked this morning during oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case centers on whether a state may, in the interest of preventing discrimination, require a private baker to produce a custom wedding cake for a same-sex marriage celebration. As Jack Phillips, the baker in question, put it yesterday in a USA Today op-ed, his creations are "not just a tower of flour and sugar, but a message tailored to a specific couple and a specific event—a message telling all who see it that this event is a wedding and that it is an occasion for celebration." Such a message in the case of a gay union, he wrote, "contradicts my deepest religious convictions." His lawyers argue that nonetheless forcing him to "sketch, sculpt, and hand paint" a cake, as the state civil rights commission has done, is "compelled speech" and a violation of his First Amendment rights. But wouldn't the same logic, the justices wanted to know, permit someone to turn potential clients away based on their race or religion as well? Could someone refuse to make a birthday cake for an African-American child by saying his religion tells him it's wrong to "celebrate black lives"? This is an important legal question, because unlike sexual orientation, race and religion are protected classes at the federal level—and laws against discrimination on those grounds have been frequently upheld. (In 1983, for example, the Court ruled that Bob Jones University could not claim a religious exemption to government desegregation efforts.) If Phillips' challenge to the Colorado rule necessarily implicates widely accepted decades-old protections against other forms of discrimination, it stands little chance of succeeding. Like it or not, the Court is not about to throw out a key provision of the Civil Rights Act. On the other hand, if there is some aspect of the Colorado policy that clearly separates it from (and makes it more egregious than) the laws that came before, the justices might be willing to side with the cake artist. Thus, their frequent attempts to get Phillips' lawyers to narrowly define a theory about when the state can or can't butt in. "What is the line?" Justice Stephen Breyer asked at one point. "The reason we're asking these questions is because obviously we want some kind of distinction that will not undermine every civil rights law." It wasn't just the baker's legal team that was pressed to state a limiting principle. When the attorneys representing Colorado took the floor, they were immediately interrupted with similar queries. Is there any form of compelled expression, the justices wanted to know, that would in the state's view cross the line? If the government can require you to make a cake against your will, what can't it do—and how do you tell the difference? Could a state force Catholic Legal Services to represent a same-sex couple in a wedding-related dispute, Chief Justice John Roberts asked, since the nonprofit happily represents heterosexual couples in similar situations? What about a case that involves words and not just images, Justice Ruth Bader Ginsburg suggested—would Colorado say a baker must spell out "God Bless the Union of Charlie and David" in frosting? Justice Samuel Alito wondered if a writer who gets paid to pen wedding vows for couples could be made to do so for a gay marriage. If any of these regulations fail, the justices were implicitly asking, what makes the Colorado law different? And if all these regulations are licit, well, what good is the Constitution? The Supreme Court is left with something its members clearly see[...]

Supreme Court Allows Trump's Travel Ban to Go Into Full Effect

Tue, 05 Dec 2017 12:25:00 -0500

On Monday, the Supreme Court allowed the latest version of President Donald Trump's "travel ban" to go into full effect while two legal challenges to it work their way through the courts. The latest version of the ban, issued in September, bars most travel from eight separate countries: Iran, Yemen, Syria, Somalia, Libya, Chad, North Korea, and Venezuela. It was originally supposed to take effect on October 18, but a federal judge blocked it on October 17. The Supreme Court's decision marks the first time the ban—the first iteration of which was issued in January—will be allowed to be fully implemented. "We are pleased to have defended this order and heartened that a clear majority [of the] Supreme Court has allowed the President's lawful proclamation protecting our country's national security to go into full effect," said Attorney General Jeff Sessions in written statement after the decision. Two justices, Ruth Bader Ginsburg and Sonia Sotomayor, expressed reservations about the decision. Omar Jadwat, director of the American Civil Liberties Union's Immigrants' Rights Project, calls the ruling "unfortunate." "President Trump's anti-Muslim prejudice is no secret—he has repeatedly confirmed it, including just last week on Twitter," Jadwat said in a statement. "We continue to stand for freedom, equality, and for those who are unfairly being separated from their loved ones." Jadwat's group is leading one of the lawsuits against the travel ban, arguing that the policy amounts to unconstitutional religious discrimination. A similar suit was filed by the State of Hawaii. The Trump administration has had to continually defend its travel restrictions since it first issued the infamous "Muslim ban" on January 27. That version of the order prohibited travel from seven Muslim-majority nations, even for those with valid U.S. visas. It also put a freeze on the U.S. refugee program, and it banned Syrian refugees indefinitely. The new policy's rollout was disastrous. Both travelers and immigration officials were confused by the new rules, and mass protests broke out at airports nationwide. A federal judge issued an emergency injunction against the ban one day after Trump signed it. In March, Trump tried again, issuing a slightly scaled back order that exempted visa holders. The new ban also took Iraq off the list of prohibited countries, and it reduced the hold on Syrian refugee resettlement to 120 days. Multiple states sued over this version as well, and a federal judge temporarily halted its implementation on March 16, setting off a months-long legal battle. In June the Supreme Court allowed a limited version of Trump's travel ban to go into effect, while upholding lower court restrictions on some of its provisions. Finally, on September 24, Trump scrapped the March version of his travel ban as well, issuing a yet more scaled-back version of the policy. And that brings us to where we are now. The Supreme Court's decision yesterday did not rule on the merits of either lawsuit, both of which will proceed apace. Hawaii will make its case before a 9th Circuit Court of Appeals panel Wednesday. The 4th Circuit Court of Appeals will consider the American Civil Liberties Union's case this Friday. Even if this version is ultimately ruled legally sound, that doesn't mean it's good policy. As Reason's Shikha Dalmia wrote in September, the ban is "cheap, cruel, and senseless." The purported reason for it, after all, is to keep Americans safe from terrorism. But as Dalmia explained, Americans' risk of dying in a terrorist attack perpetrated by a foreigner on U.S. soil is one in 3.6 million per year (and this includes the deaths that took place during the 9/11 attacks, whose massive casualty [...]

Supreme Court Today Mulls Whether Bakers Can Be Forced to Make Gay Wedding Cakes

Tue, 05 Dec 2017 07:50:00 -0500

This morning the Supreme Court will be hearing arguments in a case that may determine whether businesses providing services for weddings— like bakers, florists, photographers—may decline to provide goods and services for same-sex couples based on their religious objections to gay marriage. In Masterpiece Bakeshop Ltd. vs. Colorado Civil Rights Commission, bakery owner Jake Phillips was ruled to have violated the state's anti-discrimination and public accommodation laws by declining to make a wedding cake for a gay couple. Phillips has countered that his speech is being compelled and his religious freedom is being violated by being forced by law to produce a cake for the couple. There will be some complicated questions before the court: Do religious freedom protections extend to decisions by a business not to serve certain customers? Is refusing to serve gay couples getting married fundamentally different from rejecting gay people entirely? Is baking a cake or creating a bouquet of flowers fundamentally an act of speech or artistic expression protected by the First Amendment? Is providing goods and services to a gay couple getting married the equivalent of recognizing and supporting same-sex marriage? The American Civil Liberties Union is representing the gay couple. The Alliance Defending Freedom represents the bakery and its owner. The Department of Justice under Attorney General Jeff Sessions has declared support for Phillips. The Reason Foundation (the nonprofit that publishes and Reason magazine), joined the Cato Institute and the Individual Rights Foundation in an amicus brief supporting Phillips. The brief argues the court should consider the creation of cakes and floral arrangements a form of expressive speech and urges the court to resist the mandate to provide these goods and services. Not all liberty-minded legal experts agree. Law professors Eugene Volokh and Dale Carpenter (of The Volokh Conspiracy group blog) have come down on the opposite side with a brief supporting the state of Colorado. They argue the act of cake-baking has not typically been seen as a form of expressive speech that should be protected by the First Amendment. This matters to Volokh and Carpenter, having previously argued that a wedding photographer should not be forced to provide services for a same-sex wedding because photographs and photography are recognized as a form of expression. Carpenter further explained to Reason in an email the circumstances of the Mastershop case encouraged them to align with the opposite side: "The particular facts of the case show a 20-second conversation where the baker said 'no' before even learning what the customers might want beyond a generic wedding cake. There was no discussion of words, images, or symbols. In our view, that's stretching the protection of 'speech' too far." Libertarians may be frustrated with the Supreme Court's decision not to address freedom of association between private businesses and customers. There is very little evidence the court will consider the larger concept of if, when, or how states or cities determine when businesses are allowed to reject customers. Government, in my opinion, should have to show a serious, significant, widespread problem threatening people's livelihoods before considering restricting the right of a business owner to refuse to associate or contract with certain customers. Wedding services do not, by any means, fall into this category of concern. I predict a close, narrowly tailored ruling, but I'm still undecided on which direction. Reason's Stephanie Slade will be at the court today listening to arguments. Expect a follow-up post later today about the nature of[...]