Some Culture War Moments in the 303 Creative Oral Argument

 by Michael C. Dorf

Here on the blog last week, both Professor Segall (on Friday) and I (on Thursday) acknowledged that 303 Creative v. Ellenis--which pits a web designer's free speech against same-sex couples' statutory right against discrimination--presents some difficult questions. Yesterday's two hours and twenty minutes of oral argument in the case did little to make it much easier, even though some Justices (especially Alito, Gorsuch, and Kavanaugh) characterized the disagreement between the sides as fairly narrow. In a Verdict column tomorrow, I'll explore the costs and benefits of various ways in which the Court can try to decide the case without either gutting anti-discrimination law or effectively eliminating a right of expressive businesses to refuse to create works they deem odious.

In today's essay, I'll address a few side points raised during the argument, beginning with the not-so-subtle signaling by the web designer's lawyer--Kristen Waggoner, the CEO of Alliance Defending Freedom, an organization that litigates on behalf of conservative churches and religious organizations--where she stands in the culture wars.

Cognitive Bias, Rationality, and the Cost of a Ride on Lyft

by Neil H. Buchanan

Having written at length over the last few months about the looming political disasters that face us, I will use today's column to talk about something far less consequential, yet still (I hope) interesting.  The broad question for the day is how human psychological quirks are used in social and economic analysis.  The narrow question is why Lyft does not (seem to) have an option for non-a la carte purchases.  Is it possible, I ask with an almost-straight face, that "the market" is not completely efficient?  Gasp!

Of Free Speech, Non-Discrimination, and the Futility of Originalism

 By Eric Segall

Next week the Court will hear oral argument in 303 Creative LLC  v. Elenis. This controversy involves a wedding website designer who does not want to extend her services to same-sex weddings despite a Colorado law requiring her to do so. The case is a hard one because it pits important principles against each other: the right of the people to free expression against the state's interest in non-discrimination. Mike wrote a thoughtful piece about the case yesterday. 

The point I want to emphasize about this case is how useless originalism is to its resolution and that no one should pretend otherwise. To illustrate this futility, I will focus on an amicus brief (in support of the Court hearing the case) written by a number of all-star first amendment and originalist scholars including Michael McConnell, Richard Epstein, Mark Scarberry, Larry Alexander, Robert George, Steven Smith, and numerous other constitutional law heavyweights. If they can't show the relevance of originalism to this case, it is likely no one can. And, as shown below, they cannot.

A Selective Preview of the SCOTUS Oral Argument in 303 Creative v Ellenis (Web Designer Claiming Free Speech Right Not to Promote Same-Sex Weddings)

 by Michael C. Dorf

Next week the Supreme Court will hear oral argument in 303 Creative v Ellenis, which poses the question that the Court ducked in the Masterpiece Cakeshop case in 2017: whether the application of a public accommodations law to a business owner who provides expressive goods or services violates the business owner's right to free speech where the goods or services convey a message of celebration of or support for same-sex marriage and the business owner opposes same-sex marriage? In Masterpiece Cakeshop the Court ducked the issue by deciding the case on the ground that members of the Colorado Civil Rights Commission expressed religious bias (a dubious interpretation of the record, in my view). Although 303 Creative also comes from Colorado, and although the plaintiff's certiorari petition sought review on issues of both religious liberty and free speech, the Court took the case to consider only the free speech issue. It's possible that the Court might avoid the issue again, this time on standing or ripeness grounds, but more likely we will get a ruling on the issue the Court ducked in Masterpiece Cakeshop.

Needless to say, with this reactionary Court, I'm not optimistic. The U.S. Court of Appeals for the Tenth Circuit ruled against the web designer plaintiff. I doubt that SCOTUS granted review simply to pat the Tenth Circuit on the back for a job well done. So while I hope Colorado wins this case, I expect Colorado to lose. Even so, it matters how Colorado loses almost as much as whether the state wins or loses. As I explained in a Verdict column after the oral argument but before the SCOTUS judgment in Masterpiece Cakeshop, a robust free speech right to resist public accommodations laws could fatally undermine anti-discrimination law.

In the balance of today's essay, I'll elaborate on a distinction I offered in that column. I'll also make some further observations about 303 Creative. And I'll write next week's Verdict column on whatever happens during the oral argument.

The Justices and the Absence of a Binding Ethics Code: More Reasons Why the Court is not a Court

By Eric Segall

For over thirty years, I have had numerous personal and professional relationships with state court and lower federal court judges. The vast majority of them take their ethical responsibilities seriously, especially when it comes to accepting gifts from people with interests before them and deciding whom they may socialize with if they fear people may be seeking to influence them. Various state and federal ethics codes bind these judges, but in my experience, most judges simply think it is part of the judicial role to avoid, what virtually all judicial ethics codes call the "appearance of impropriety." That standard is codified in the Official Code of Conduct rules applying to "United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges." The federal judges not covered by this Code are, of course, the Justices of the United States Supreme Court.

Canon Two of the Official Code of Conduct says the following:

Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities

(A) Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

(B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge....

Again, it has been my experience that most judges abide by these rules not just because they have to but because a vital part of a judge's responsibilities is to avoid any public perception that they are beholden to special or private interests. Now let's talk about the Supreme Court of the United States.

The Pageantry of Casual Racism

by Neil H. Buchanan

This past weekend was the big rivalry week in American college football.  As in the past, I find myself unable to break the emotional hold that this corrupt and ugly game has on me, so I watched and watched and watched.  Whereas in the recent past I would be tempted to write yet another column defending amateurism and pointing out that scholarship athletes have never been "unpaid," however, the situation has now gotten so completely out of hand that there is no point.  This is bad all the way down.

So rather than discuss the fact that showering money on college players -- so openly that one "color commentator" spent several minutes during a game on Friday giving a star player unsolicited advice to  hold out for $7 million in "name, image, and likeness rights" from his university, to stop him from going to the NFL -- has not in any way fixed the deeply corrupt system (big surprise), I will focus on a different kind of ugliness.

The Challenge of Writing a Constitutional Law Exam in a History-Centric Regime

 by Michael C. Dorf

In a Verdict column last month, I decried the recent turn to history in SCOTUS cases involving unenumerated rights, firearms, and the Establishment Clause. I contended that, in these particular subject matter areas and as a general matter: history standing alone is too under-determinate to adjudicate contemporary constitutional controversies; therefore it will be used (as it was in recent cases) chiefly as a mask for decisions reached on ideological grounds; and unless the Justices are prepared to overrule just about all of their precedents, they will need some means of deciding when a case presents a novel question to be decided under the history-only rubric versus when a case presents a sufficiently interstitial question to call for the application of older precedents that are preserved per stare decisis.

The turn to history presents a further problem that I raise here only partly tongue-in-cheek. It poses a serious challenge to those of us who teach constitutional law: how to write a good exam question?