Tag: scotus

SCOTUS’ Ruling in Gay Wedding Website Case Was a Defeat for Compelled Speech

The government may not compel someone to “create speech she does not believe,” the Supreme Court ruled in June. In a 6–3 opinion authored by Justice Neil Gorsuch, the Court sided with a graphic designer, Lorie Smith, who wanted to expand into the wedding website business without being forced by Colorado law to create products celebrating same-sex marriages.

Back in 2021, the U.S. Court of Appeals for the 10th Circuit found that the planned websites would each constitute “an original, customized creation,” designed by Smith with a goal of celebrating the couple’s “unique love story.” As such, it said, they “qualify as ‘pure speech’ protected by the First Amendment.” The appeals court admitted that Smith was willing to provide her services to anyone as long as the substance of the project did not contradict her values. It also recognized that “Colorado’s ‘very purpose’ in seeking to apply its law to Ms. Smith” was to stamp out dissenting ideas about marriage.

Despite all of that, the 10th Circuit held that the state government was within its authority to compel her to create such websites. Lamenting “an unfortunate tendency by some to defend First Amendment values only when they find the speaker’s message sympathetic,” Gorsuch et al. concluded otherwise.

The ruling in 303 Creative LLC v. Elenis is neither as narrow nor as broad as it (theoretically) could have been. The Court did not do away with public accommodations laws or allow businesses to discriminate against customers on the basis of characteristics such as skin color or national origin. But it did note that “public accommodations statutes can sweep too broadly when deployed to compel speech.”

The high court also did not establish a right for any and every business owner to decline to provide services for same-sex weddings—only those whose services involve expressive activity. Whether a particular service (say, cake baking) is expressive will have to be litigated case by case.

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Supreme Court reinstates regulation of ghost guns, firearms without serial numbers

The Supreme Court is reinstating a regulation aimed at reining in the proliferation of ghost guns, firearms without serial numbers that have been turning up at crime scenes across the nation in increasing numbers.

The court on Tuesday voted 5-4 to put on hold a ruling from a federal judge in Texas that invalidated the Biden administration’s regulation of ghost gun kits. The regulation will be in effect while the administration appeals the ruling to the 5th U.S. Circuit Court of Appeals in New Orleans — and potentially the Supreme Court.

Chief Justice John Roberts and Justice Amy Coney Barrett joined with the court’s three liberal members to form the majority. Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas would have kept the regulation on hold during the appeals process. Neither side provided an explanation.

The Justice Department had told the court that local law enforcement agencies seized more than 19,000 ghost guns at crime scenes in 2021, a more than tenfold increase in just five years.

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The Supreme Court ‘Ethics’ Scandal Is The New Russia-Collusion Hoax

Senate Democrats are advancing a doomed Supreme Court “ethics” bill that would withhold $10 million in funding from Chief Justice John Roberts until the Supreme Court has “put into effect a code” for all justices.

The Senate doesn’t have the power to dictate how the Supreme Court conducts its business — any more than SCOTUS has the power to prescribe rules for the Senate. They know it. Then again, the effort to intimidate and delegitimize the court is meant to corrode constitutional governance, so perhaps the bill makes a certain amount of perverse sense.

Of course, turning to the likes of Sheldon Whitehouse and Dick Durbin for ethical guidance is much like seeking truth from Adam Schiff. And much like the Russia-collusion hoax, the effort to destroy the Supreme Court is a highly coordinated partisan scheme.

First, anti-court left-wing activist groups cook up some ethics “scandals.” These accusations are then laundered by complicit or credulous leftist media outlets for public consumption. Then, the bogus scoops are held up by partisans as proof of alleged wrongdoing. Everyone, other than perhaps the most gullible partisan hysteric, understands what’s happening.

Each week another ethics “scandal” emerges, one dumber than the next. The stories are divvied out among numerous outlets to saturate the news and create a perception of widespread wrongdoing. Some, such as ProPublica, are paid by pack-the-court groups. Others, such as Politico, Slate, and The New York Times, do it for free.

A recent Guardian hit piece on Clarence Thomas, for example, offers a good example of how all this works. The justice, the paper excitedly reports, received “seven payments” through Venmo accounts in November and December 2019 from lawyers who had once clerked for the justice. Though the amounts were not disclosed — one strongly suspects the minuscule sums would make the story even more preposterous — The Guardian explains that “the purpose of each payment is listed as either ‘Christmas party’, ‘Thomas Christmas Party’, ‘CT Christmas Party’ or ‘CT Xmas party.’”

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Police Seized Innocent People’s Property and Kept It for Years. What Will the Supreme Court Do?

Gerardo Serrano and Stephanie Wilson may have little in common. But there is at least one major tie that binds them: The government seized their vehicles, never charged either of them with a crime, and, most pertinently, made them wait years before resolving their cases.

It is not uncommon for victims of civil forfeiture—the practice that allows law enforcement to take people’s assets without having to prove the owner was guilty of a crime—to endure protracted delays before they have the opportunity to even step foot in a courtroom and defend themselves. The U.S. Supreme Court will soon hear Culley v. Attorney General of Alabama and decide if those who find themselves in that situation are entitled to a probable cause hearing after the seizure and, if so, how speedily it must happen.

That the highest court in the country has to rule on whether people get such a hearing is an apt indictment of how unaccountable civil forfeiture has become.

Serrano’s case is instructive. In September 2015, while traveling to Mexico, he stopped at the border in Eagle Pass, Texas, to take pictures. That upset some Customs and Border Protection (CBP) agents, who demanded he surrender the password to his cellphone. Serrano refused. The agents then searched his new Ford F-250 truck, found five stray bullets, and accused him of smuggling “munitions of war.” Serrano had a concealed carry permit, and there was no firearm in his vehicle. The officers confiscated his car anyway.

But the fragile nature of the allegation didn’t matter, because it would never be subject to scrutiny. The government didn’t press charges. They did, however, keep his vehicle for two years, without holding a hearing where he could contest the seizure—or without ever filing a formal forfeiture complaint. 

The dearth of due process protections was devastating. Serrano paid the government $3,800—10 percent of the car’s value—as a requirement to fight the move in federal court; he was met with more radio silence, even after the feds cashed the check. A Kentucky resident, he subsequently spent thousands of dollars on rental cars while his vehicle sat halfway across the country, locked in a Texas parking lot.

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The Mysterious Case of the Fake Gay Marriage Website, the Real Straight Man, and the Supreme Court

Long before the Supreme Court took up one of the last remaining cases it will decide this session—the 303 Creative v. Elenis case, concerning a Colorado web designer named Lorie Smith who refuses to make websites for same-sex weddings and seeks an exemption from anti-discrimination laws—there was a couple named Stewart and Mike. According to court filings from the plaintiff, Stewart contacted Smith in September 2016 about his wedding to Mike “early next year.” He wrote that they “would love some design work done for our invites, placenames etc. We might also stretch to a website.” Stewart included his phone number, email address, and the URL of his own website—he was a designer too, the site showed.

This week, I decided to call Stewart and ask him about his inquiry.

The Supreme Court is expected to deliver its opinion in a case in which Stewart plays a minor role, a case that could be, as Justice Sonia Sotomayor stated by way of a question at oral argument in December, “the first time in the Court’s history … [that] a commercial business open to the public, serving the public, that it could refuse to serve a customer based on race, sex, religion, or sexual orientation.” (Update: On Friday, the court ruled 6-3 in the web designer’s favor.) It took just a few minutes to reach him. I assumed at least some reporters over the years had contacted him about his website inquiry to 303 Creative—his contact information wasn’t redacted in the filing. But my call, he said, was “the very first time I’ve heard of it.”

Yes, that was his name, phone number, email address, and website on the inquiry form. But he never sent this form, he said, and at the time it was sent, he was married to a woman. “If somebody’s pulled my information, as some kind of supporting information or documentation, somebody’s falsified that,” Stewart explained. (Stewart’s last name is not included in the filing, so we will be referring to him by his first name throughout this story.)

“I wouldn’t want anybody to … make me a wedding website?” he continued, sounding a bit puzzled but good-natured about the whole thing. “I’m married, I have a child—I’m not really sure where that came from? But somebody’s using false information in a Supreme Court filing document.”

Here is what we know—though, to be frank, I do not know what we have learned from this yearslong mystery, other than it looks like Smith and her attorneys have, perhaps unwittingly, invented a gay couple in need of a wedding website in a case in which they argue that same-sex marriages are “false.”

When Smith and her attorneys, the Christian right group Alliance Defending Freedom, or ADF, brought this case for the first time, it was to the United States District Court in Colorado in 2016, and they lost. Smith and ADF filed the case on September 20 of that year, asking the court to enjoin the state anti-discrimination law so that Smith could begin offering her wedding website design services to straight couples only. Up to this point, Smith had never designed any wedding website. (In fact, her website six months prior to the lawsuit being filed in 2016 does not include any of the Christian messaging that it did shortly afterward and today, archived versions of the site show.) The initial lawsuit did not mention the “Stewart” inquiry, which was submitted to Smith’s website on September 21, according to the date-stamp shown in later court filings, indicating that she received it the day after the suit was originally filed.

It is unclear exactly when—or if—the inquiry from “Stewart” was examined and verified in the course of this legal battle. (His phone number was, after all, right there.) In a motion filed by the defense on October 19, 2016, arguing that the case should be dismissed, they state that Smith has received no actual inquiries for services and therefore has suffered no injury. The following month, in its response, ADF did not mention the September 2016 “Stewart” inquiry to refute the defense’s claims. Rather, ADF merely stated that it was not necessary for Smith to have received an inquiry in order to challenge the law over her feared consequences of denying services to a same-sex couple.

Not until February 2017 did ADF include the text of the “Stewart” inquiry and argue its relevance to the case. “Notably, any claim that Lorie will never receive a request to create a custom website celebrating a same-sex ceremony is no longer legitimate because Lorie has received such a request,” the group wrote. “Even though she is not currently in the wedding industry, Lorie received an email inquiry on September 21, 2016.” Smith elaborated in a sworn statement that she “received a request through the ‘contact’ webpage on my website from a person named, ‘Stewart,’ reference number 9741406, to create graphic designs for invitations and other materials for a same-sex wedding (‘same-sex wedding request’).” She added that a “true and accurate copy” of the “same-sex wedding request” would be submitted with the statement. Why it took until possibly February 2017 to introduce the inquiry is not clear.

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Supreme Court rules businesses can refuse service to LGBTQ+ customers

Businesses can refuse to serve same-sex couples if doing so would violate the owners’ religious beliefs, the Supreme Court ruled on Friday.

Why it matters: The court has significantly expanded LGBTQ rights over the past several years, but is now carving out some exceptions.

Driving the news: The case concerns Lorie Smith, a Colorado web designer who wanted to create and sell wedding websites, but not to same-sex couples.

  • Colorado’s civil rights law prohibited her, or any business that serves the general public, from turning away customers because of their sexual orientation. She said complying with that law would force her to espouse views she does not agree with.
  • “The artwork that I create is speech,” Smith told Colorado Public Radio in December, adding that, “those messages must be consistent with my convictions.”

The big picture: The conservative-majority Supreme Court ruled 6-3 in favor of Smith, saying she has a First Amendment right to refuse to design custom wedding websites for same-sex couples.

  • “The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Colorado cannot deny that promise consistent with the First Amendment,” Justice Neil Gorsuch wrote.

Gorsuch wrote the majority opinion, joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett.

  • “The opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong,” Gorsuch wrote in the majority opinion.

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‘Color-Blind’ Supreme Court Bars Consideration Of Race In College Admissions

The Supreme Court has ruled that it is unconstitutional to consider race in university admissions.

In Thursday’s 6-3 decision (along ideological lines), the justices rejected arguments by Harvard College and the University of North Carolina that their admissions programs are warranted to ensure campus diversity.

The high court majority effectively overturned a 2003 decision, known as Grutter v. Bollinger, that had reaffirmed the right of universities to consider race as one of many admissions factors.

In a concurring opinion, Justice Clarence Thomas said that ruling “is, for all intents and purposes, overruled.”

As The Wall Street Journal reports, the ruling will force a reworking of admissions criteria throughout American higher education, where for decades the pursuit of diversity has been an article of faith.

Specifically, The 14th Amendment ensures that individuals receive equal protection of the laws from state agencies including public universities, a standard that also applies to most private colleges that receive federal funding.

In general, the court has permitted racial preferences only to remedy specific acts of illegal discrimination, not compensate for general social injustices said to stem from historical practices.

Does it really need SCOTUS to decide this? Of course, race should not be considered!

“Eliminating racial discrimination means eliminating all of it,” Chief Justice John Roberts wrote in the majority opinion.

“And the Equal Protection Clause, we have accordingly held, applies ‘without regard to any differences of race, of color, or of nationality’—it is ‘universal in [its] application.’”

The court’s three liberals dissented. Society “is not, and has never been, colorblind,” Justice Sonia Sotomayor wrote, joined by Justices Elena Kagan and Ketanji Brown Jackson.

“The Court ignores the dangerous consequences of an America where its leadership does not reflect the diversity of the People.”

The dissenters exclaimed that the court’s conservative majority was “entrenching racial inequality in education.”

“Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits,” wrote Sotomayor.

“In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

Brace for the snowflakes to unleash their hatred of this color-blind ruling…

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Supreme Court Refuses To Expand the ‘True Threats’ Exception for Free Speech

SCOTUS ruling in Facebook threats case “neither the most speech-protective nor the most sensitive to the dangers of true threats.” For statements to be considered true threats, unprotected by the First Amendment, the person making them must have some understanding the statements could be construed as threatening, the Supreme Court held yesterday. The case—Counterman v. Colorado—involves a defendant convicted of stalking after sending a bevy of Facebook messages to someone identified as C.W.

In a 7-2 ruling issued yesterday, the Court vacated the conviction and remanded the case back to the lower court. The court’s three liberal justices were joined by Justices Brett Kavanaugh, Neil Gorsuch, John Roberts, and Samuel Alito.

“True threats of violence are outside the bounds of First Amendment protection and punishable as crimes,” noted Justice Elena Kagan in the majority’s opinion:

Today we consider a criminal conviction for communications falling within that historically unprotected category. The question presented is whether the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements. We hold that it does, but that a mental state of recklessness is sufficient. The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The State need not prove any more demanding form of subjective intent to threaten another.

In this case, Billy Counterman sent C.W.—a singer and musician who lived in his community—hundreds of Facebook messages between 2014 and 2016. “Some of his messages were utterly prosaic (‘Good morning sweetheart’; ‘I am going to the store would you like anything?’)—except that they were coming from a total stranger,” notes Kagan. “Others suggested that Counterman might be surveilling C. W.,” and some expressed anger at her.

“Fuck off permanently,” said one message. Another read: “You’re not being good for
human relations. Die.”

Understandably, the messages frightened C.W., who worried that Counterman was following her and might hurt her. She contacted local police, who charged him under a Colorado stalking statute that prohibits “repeatedly . . . make[ing] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress.”

Counterman argued that his messages were not true threats and thus were protected by the First Amendment.

The trial court weighed whether Counterman’s messages were true threats using a “reasonable person” standard: would some hypothetical, objective “reasonable person” find them threatening? It found that they would, meaning the messages were not protected speech. The case was put before a jury, which found Counterman guilty under the stalking statute.

The Colorado Court of Appeals then affirmed this decision, holding that “a speaker’s subjective intent to threaten” is not necessary to convict the speaker for threatening communications. The Colorado Supreme Court declined to review the case.

“Courts are divided about (1) whether the First Amendment requires proof of a defendant’s subjective mindset in true-threats cases, and (2) if so, what mens rea”—that is, level of intent or knowledge—”standard is sufficient,” noted Kagan. Thus, the Supreme Court decided to hear Counterman’s case.

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The Supreme Court’s latest opinion means innocent people must remain in prison

The Supreme Court just ruled that at least some federal prisoners who are completely innocent must serve out their entire sentence, with no meaningful way to challenge their unlawful conviction.

One of the most fundamental principles of criminal law is that no one may be convicted of a crime unless the legislature previously passed a law making their actions illegal. If there is no law on the books that, say, marijuana possession is unlawful, then a judge cannot toss someone in jail because they were found with a joint.

The Supreme Court’s 6-3 decision in Jones v. Hendrix, handed down Thursday, does not directly attack this foundational principle. Instead, it does so indirectly by prohibiting many prisoners from ever challenging their convictions in court.

The case centers on Marcus DeAngelo Jones, a federal prisoner who was convicted in 2000 of possessing a firearm after being convicted of a felony. Nineteen years later, in Rehaif v. United States (2019), the Supreme Court held that no one may be convicted under this felon-in-possession statute unless they knew they had a felony conviction at the time that they possessed the gun.

Jones says that he (incorrectly, but genuinely) believed that his previous felony conviction had been expunged when he purchased a gun, and thus his conviction was invalid under Rehaif. In essence, he claims that no federal law criminalized his possession of a firearm, because he did not know he had a felony conviction.

Thanks to Thomas’s opinion in Jones, however, we will never know if Rehaif invalidates Jones’s conviction — that is, if he is innocent of the crime that caused him to spend nearly a quarter-century in prison — because the Court held that Jones may not challenge his conviction at all.

The reason why is a federal law, known as Section 2255, which ordinarily prevents federal prisoners from challenging their conviction or sentence more than once.

After he was sentenced, but before Rehaif raised a cloud of doubt over whether Jones belonged in prison at all, Jones successfully petitioned a federal court to vacate part of his sentence. Thomas’s opinion holds that Jones’s pre-Rehaif challenge to his sentence blew his only chance to challenge his conviction — even though Jones couldn’t have known before Rehaif was decided that he had a potentially valid claim that he is innocent.

Section 2255 contains several exceptions which allow some federal prisoners to bring a second challenge — one of which provides that Jones may bring a second challenge if § 2255’s usual process “is inadequate or ineffective to test the legality of his detention.”

But Thomas construes this “inadequate or ineffective” language very narrowly — so narrowly, in fact, that Justice Ketanji Brown Jackson mocks Thomas in her dissenting opinion for ruling that someone like Jones may only seek relief “if the courthouse where a § 2255 motion would have otherwise been filed has burned to the ground or been carried away by a mudslide.”

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Supreme Court Overrules Local Governments For Seizing Homes

The U.S. Supreme Court reversed court rulings in which local governments seized two homes over unpaid tax debts and kept sale proceeds that far exceeded the tax owed.

Critics call the practice “home equity theft.”

The case came after Pacific Legal Foundation (PLF), which represented the homeowners in both cases, released a report late last year saying that 12 states and the District of Columbia allow local governments and private investors to seize dramatically more than what is owed from homeowners who fall behind on property tax payments. PLF is a national nonprofit public interest law firm that takes on governmental overreach.

The U.S. Supreme Court released unsigned orders (pdf) on June 5 summarily reversing two rulings of the Supreme Court of Nebraska.

The nation’s highest court did not explain why it was issuing the orders. No justices dissented.

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