National Law Journal


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NATIONAL LAW JOURNAL
Supreme Court Brief
POWERED BY LAW.COM
Tony Mauro
Marcia Coyle
Jun 20, 2018
With five decisions on Monday and more likely on Thursday, the justices could wrap up the 2017 term next week. Today we put some court scholars on the spot for their ruminations about why two of the term's biggest cases—partisan gerrymandering and the no-wedding-cakes-for-gay-couples challenges—seemed to fizzle. And former U.S. solicitor general Paul Clement goes toe-to-toe with Noel Francisco on the propriety of judges who tweet. Thanks for reading, and we welcome feedback at tmauro@alm.com and mcoyle@alm.com.
The Big Ducks: Are There Any Lessons?Two of the U.S. Supreme Court's most closely watched cases—both with potentially sweeping ramifications—fizzled this month. The justices, in narrow rulings, ducked big questions in the partisan gerrymander challenges and the Colorado wedding cake case. Justice Anthony Kennedy was expected to be key in those decisions. What's going on?

We asked a number of court scholars for their takes. Here are some of their thoughts on Masterpiece Cakeshop v. Colorado Civil Rights Commission (7-2) and the unanimous decision in Gill v. Whitford.

➤➤ David Strauss of the University of Chicago School of Law notes Kennedy's "well-established ambivalence" about the issues in those cases, particularly the partisan gerrymandering question. And Masterpiece Cakeshop enabled Kennedy "to be on both sides—gay equality and respecting religious belief—pretty resoundingly in the same opinion, in fact."

Strauss says the two decisions recall the recent period when there were only eight justices—after the death of Antonin Scalia—and the court decided cases narrowly to avoid splitting 4-4. "Here they seem to want to avoid splitting 5-4," Strauss says.

"The optimistic, I guess, view is that they don't want to contribute to the partisan atmosphere in the country. The more realistic view, I'm afraid, is that there are going to be some sharply divided 5-4 decisions coming—Janus (union fees) and maybe travel ban—and they wanted to limit the extent to which they were divided on the usual lines."

➤➤ Because it was a three-judge-court case, the justices had to take Gill, says Pamela Karlan, of Stanford University Law School. However, "Masterpiece Cakeshop was kind of a self-inflicted wound," she says. The case was relisted many times before Gorsuch joined the bench. Karlan adds: "They didn't have to take the case and there were all sorts of off-ramps on it."

➤➤ Alan Morrison of George Washington University School of Law says about Masterpiece Cakeshop: "It really matters exactly what the couple asked for and wanted, and what the baker said he would do and would not do." But in his view, he says, the Colorado state commission "did not focus in that level of detail and so the court may have felt that it was being asked to make a ruling on facts that were highly uncertain." The gerrymander decisions are different, Morrison says. "My guess is that the court is now poised to get around the political question doctrine, but on a district-by-district basis, which is what they have done in racial gerrymandering cases."

➤➤ The Gill and Masterpiece decisions reflect the court's ambition "to answer important questions without a reliable means" of resolving when rights conflict, as in Masterpiece Cakeshop, or when recognition of a right, as in the partisan gerrymander cases, requires judicial management, says Jamal Greene of Columbia University Law School. "Other jurisdictions adopt more modest understandings of the scope of rights and so they tend to find cases of this sort less paralyzing," he says.

➤➤ Richard Hasen of the University of California Irvine School of Law says he thinks the narrow decisions mean, on one hand, "that Justice Kennedy expects to be around and can decide these issues in a future term. On the other hand, perhaps Justice Kennedy did not want to leave the court on such a divisive note. I guess we will know in the next week or two."
Clement Counters Francisco on Tweeting Federal Judge

Kirkland & Ellis partner Paul Clement has fired back at the U.S. Justice Department's argument that the justices should not now dive into questions about how judges are using social media. At the heart of Clement's case—he represents the timber company Sierra Pacific Industries—is a $122 million settlement with the government stemming from the 2007 Moonlight Fire that burned nearly 65,000 acres in Northern California.

U.S. District Judge William Shubb, who presided in the lawsuit, followed local federal prosecutors in the case on social media and reportedly tweeted a news story about the settlement. (That news story apparently suggested the timber company was liable; the company never conceded liability.)

Clement has asked the high court to decide two issues. First, should Shubb have recused himself based on his Twitter activity? And second, when weighing a fraud-on-the-court motion, should a judge consider both pre- and post-judgment evidence of alleged government misconduct, or be limited only to later-discovered evidence?

SG Noel Franciscoin the Justice Department's brief, argued that questions about judges' social media use should be left to further development in the lower courts. Clement, responding recently in his reply brief, wrote:

"But surely the government does not mean that more judges should tweet on more of their own rulings or follow more prosecutors while adjudicating prosecutorial misconduct. The usual admonition of further percolation may be beneficial for some issues, but it is badly misplaced here."
Writing about the evidence to prove fraud-on-the-court, Clement wrote: "Courts should evaluate allegations of prosecutorial misconduct amounting to fraud on the court based on all the evidence and without 'following' the prosecutors or 'tweeting' about the results of the inquiry. That does not seem too much to ask. That the federal government thinks otherwise only makes the need for this Court’s plenary review more acute."

The justices will take their first look at the case at their Thursday conference.

Rod Rosenstein, the embattled deputy U.S. attorney general, argued—and won—his first case at the U.S. Supreme Court. (Someone give him a high-five about now.) The justices on Monday, ruling 5-3, sided with Rosenstein's argument against a reduction in a prison sentence in drug case.

The Justice Department said in a statement: "Deputy Attorney General Rod Rosenstein was honored to argue before the Supreme Court, and we are pleased with the decision." Here's the Washington Post write-up, and Reuters has more.

In other news....>> Sorry, securities lawyers, there will be no Supreme Court ruling on these fraud claims.

>> The justices' latest annual financial disclosures reveal continued stock sales from Chief Justice John Roberts Jr. and justices Samuel Alito Jr. and Stephen Breyer. We've posted all the disclosures here.

>> Fourteen years later, progress remains elusive for the Supreme Court on partisan redistricting.

>> The U.S. Justice Department delivers on its threat to take a sanctuary city injunction—this one involving Chicago—to the justices. Wilmer Hale represents the city. The Seventh Circuit refused to restrict the scope of the injunction, saying the court was waiting for guidance from the high court in Trump v. Hawaii.

>> Here's a look at some of the new cert grants from Monday's orders list. The Apple Inc. antitrust case is getting a lot of attention.

>> A Florida man who claimed he was arrested in retaliation for exercising his First Amendment rights notched a win at the Supreme Court.

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