• June 11, 2018

    by Richard N. Lorenc, Executive Vice President of the Foundation for Economic Education*

    “Our law punishes people for what they do, not who they are.” Chief Justice John Roberts articulated this core constitutional principle last year in Buck v. Davis, a case that reversed the death sentence of an African-American man because a psychologist told the jury that he was more dangerous because he was black.

    Just as the judiciary has a responsibility to address when racial prejudices poison jury deliberations, it must also act when challenged with the prospect of anti-gay bias in a capital murder trial.

    Next month, the Supreme Court is being asked to accept a case in which Charles Rhines, a gay man in South Dakota convicted of murder in 1993, received the death penalty after deliberations included statements such as “If he’s gay we’d be sending him where he wants to go if we voted for [life in prison].” 

  • June 7, 2018
    Guest Post

    by Alan Neff

    *This piece was originally posted on Crooks & Liars.

    Before the end of June, and possibly within the next week, the Supreme Court will announce its decision in the partisan-gerrymandering case of Whitford v. GillWhitford is Wisconsin’s starkly Republican contribution to the ongoing national battle over the principle that, as Justice Ginsburg has said for the Court, “...voters should choose their representatives, not the other way around.”

    (Note: All of the papers in Whitford - from the original complaint to the briefs of the parties and all the intervenors - can be found here, at the site of the Campaign Legal Center, which provides members of the plaintiffs’ legal team.)

  • June 5, 2018
    Guest Post

    by Leslie C. Griffin, William S. Boyd Professor of Law, University of Nevada, Las Vegas William S. Boyd School of Law 

    Many of us expected the Baker, Jack Phillips, to defeat the Same-Sex Couple, Charlie Craig and Dave Mullins, in the Supreme Court of the United States. The Baker refused to bake a marriage cake for the Couple because of his religious opposition to same-sex marriage. I thought it would be a Kennedy, 5-4 opinion, on free speech grounds. Instead, the Court, in an opinion by Kennedy, unfortunately ruled 7-2 in the Baker’s favor on free exercise of religion grounds.

    The free exercise decision was surprising because the Free Exercise Clause requires everyone to obey neutral laws of general applicability. The sexual orientation anti-discrimination laws are neutral laws of general applicability. Both the Colorado Civil Rights Commission and the Colorado Court of Appeals so ruled. Nonetheless, Justice Kennedy wrote that the Commission had displayed religious hostility in its enforcement of those laws, and that the “neutral and respectful consideration to which Phillips was entitled was compromised.”

  • June 5, 2018

    by Julie A. Werner-Simon, former federal prosecutor, 1986-2015

    Just in time for June nuptials, the U.S. Supreme Court on Monday, June 4, 2018 issued the long-awaited decision in Masterpiece Cakeshop Ltd v. Colorado Civil Rights Commission. Justice Anthony Kennedy authored the 7-2 opinion, which reversed the finding of discrimination against baker Jack Phillips made by the Colorado Civil Rights Commission and the Colorado Court of Appeals. In a fractured and narrowly tailored 58-page decision, the court decided the case not on freedom of speech-what-is-art grounds, but on the free exercise clause of the First Amendment.  What stands out about the decision is how unsatisfying it is. It’s not the full meal expected after the December 5, 2017 oral argument when the justices sought to distinguish off-the-shelf cake from made-to-order confections, or the artistic merits of a made-at-the-table Mexican mole dish from that of any creation from any chef.  The decision is merely an amuse-bouche (those bite-sized hors-d'oeuvres) that does not rank as even an appetizer. 

    Kennedy’s narrow slicing in the Masterpiece Cake case is a win for the Colorado baker on procedural due process grounds but leaves to another day the question of what to do when the rights of religion and inclusion and fair treatment collide.

  • June 4, 2018

    by Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law

    The thought of Donald Trump getting to pick one more Supreme Court justice is truly chilling. Neil Gorsuch replacing Antonin Scalia was an enormous lost opportunity, but it kept the Court’s ideological balance the same as it had been with Scalia on the Court. Trump replacing Ruth Bader Ginsburg or Anthony Kennedy or Stephen Breyer would create the most conservative Court since the mid-1930s and a conservative majority that could remain on the Court for years to come.

    Since 1960, 78 years old is the average age at which a Supreme Court justice has left the bench. Today, there are three justices older than that. Justice Ginsburg turned 85 on March 15. Justice Kennedy will turn 82 on July 23 and Justice Breyer will have his 80th birthday on August 15. I have no doubt that Justices Ginsburg and Breyer will remain on the Court until the end of the Trump presidency if their health allows them to do so. But there are rumors that Justice Kennedy might retire at the end of this term.