[This post was updated at 2:43 p.m. to provide more details on, among other things, the cases that the justices granted today.]

Three weeks ago, the justices threw out a ruling against a Colorado baker who had refused on religious grounds to make a custom wedding cake for a same-sex couple. By a vote of 7-2, the justices ruled that proceedings before the Colorado administrative agency that considered the baker’s case were unfairly tainted by hostility to religion.

Shortly after issuing their decision in the Colorado case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the justices considered the case of Barronelle Stutzman, a Washington state florist who, like the Colorado baker, declined to provide her services – this time, original flower arrangements – to a same-sex couple for their wedding. After the state courts rejected her argument that requiring her to design floral arrangements for same-sex weddings would violate her First Amendment rights to free speech and the free exercise of her religion, Stutzman went to the Supreme Court, asking them to review that ruling. The justices put Stutzman’s appeal on hold until they ruled on Masterpiece, and today they sent her case back to the lower courts so that (as in Masterpiece) they can consider Stutzman’s assertion that she too was the victim of religious hostility. The order means that Stutzman will have another chance to fight the lower court’s ruling, which levied fees and penalties on Stutzman and ordered her to provide the same services to same-sex couples that she provides to opposite-sex couples. The justices will almost certainly have to tackle the question presented by Stutzman’s case soon, but they apparently do not intend to do it next fall.

The justices also sent Rucho v. Common Cause, a partisan-gerrymandering case from North Carolina, back to the lower court for it to reconsider the case in light of Gill v. Whitford, last week’s ruling rejecting the argument by voters alleging partisan gerrymandering in Wisconsin that they could contest the entire state map. The challengers in the North Carolina case, who won in the lower court, had urged the justices not to return the case to the lower court, telling the Supreme Court that they can show a legal right to sue because (among other things) they have individual plaintiffs living in each of the state’s 13 congressional districts. But the state’s Republican legislators had argued – we now know, successfully – that the case “merits the same fate as” the Wisconsin case.

The justices added seven new cases to their docket for the fall. Republic of Sudan v. Harrison arises out of the September 2000 bombing of the USS Cole while the ship was in port in Yemen. The lawsuit was filed by the families of service members injured in the bombing, seeking to hold the government of Sudan responsible for its role in the incident. The justices will not weigh in on the merits of the dispute; instead, the question now before the court is whether the plaintiffs gave the Sudanese government proper notice of their lawsuit.

The lawsuit was filed under the Foreign Sovereign Immunities Act, a federal law that usually bars lawsuits against foreign nations in U.S. courts but also contains an exception (among others) for countries, like Sudan, that have been designated as state sponsors of terrorism. The FSIA specifically addresses how plaintiffs should serve foreign governments with the complaints against them. One method is to have the clerk of the U.S. court where the complaint is filed send the complaint and a translation to “the head of the ministry of foreign affairs of the foreign state concerned.”

In this case, the plaintiffs sent the complaint to the Sudanese minister of foreign affairs, but they did so at the Sudanese embassy in Washington. After the U.S. Court of Appeals for the 2nd Circuit agreed that such service satisfied the FSIA, the Sudanese government went to the Supreme Court. The justices asked the United States to weigh in, and in April the government recommended review. The government told the justices that, although it sympathized with the plaintiffs, the lower court’s ruling was wrong, because the complaint must be sent to the ministry of foreign affairs in the foreign nation’s seat of government. The government suggested that the Supreme Court grant review in a similar case, Kumar v. Republic of Sudan, but the justices opted to take up this case instead.

The Supreme Court also added Washington State Department of Licensing v. Cougar Den, a dispute over Indian fuel taxes, to its docket for next term. The case has its roots in a 2013 tax bill for $3.6 million that Cougar Den, a fuel wholesaler owned by a member of the Yakama Nation in Washington state, received from the state. The company argued that it did not have to pay the tax bill because the tax violated Article III of an 1855 treaty with the federal government that gives it the right to “travel upon all public highways” – for example, to haul fuel from Oregon to gas stations owned by other members of the nation. The Washington Supreme Court agreed with the company, and the state appealed. When the U.S. Supreme Court asked the federal government to weigh in on the dispute, the government urged the justices to take up the case, telling them that the state court’s ruling is both incorrect and in conflict with a decision by a federal court of appeals.

Next term the justices will also hear oral argument in Dawson v. Steager, a case that began 10 years ago, when James Dawson retired from the U.S. Marshals Service and began to receive federal retirement benefits. Dawson argued that all of his retirement income should be exempt from West Virginia income taxes because it would be if he had retired from a state, rather than federal, law-enforcement job. A state court agreed, holding that the state’s tax laws treat different kinds of retirement income differently, depending on the source – contrary to federal law and a doctrine known as intergovernmental tax immunity. But the West Virginia Supreme Court of Appeals overturned that decision, and Dawson went to the U.S. Supreme Court, which asked the federal government for its views. The federal government recommended that review be granted, and today the justices not only accepted that recommendation but also adopted the government’s framing of the question presented by the case: Whether the doctrine of intergovernmental tax immunity, as codified in the Public Salary Tax Act, bars West Virginia from exempting the retirement benefits of some former law-enforcement officials from state taxes without giving the same exemption to retired members of the U.S. Marshals Service.

As John Elwood has explained, Nutraceutical Corp. v. Lambert is a case filed as a would-be class action by Troy Lambert against Nutraceutical, the maker of a dietary supplement that Lambert had purchased. When the district court declined to allow the class action to go forward, Lambert did not appeal within 14 days, as the rules governing appeals require, but instead filed a motion asking the district court to reconsider its ruling; he only filed a notice that he would appeal after the motion to reconsider was denied. Today the justices agreed to decide whether the court of appeals was right when it ruled that Lambert’s appeal could go ahead even though he had not filed his notice of appeal on time.

In Biestek v. Berryhill, the justices will weigh in on an important question for people who apply for Social Security disability benefits. An individual is not eligible for such benefits if he can “make an adjustment to other work.” Today the justices agreed to decide whether the Social Security Administration can deny benefits when a vocational expert testifies that “other work” does exist, but declines to disclose the data on which the expert’s testimony rests.

In Helsinn Healthcare v. Teva Pharmaceuticals USA, the justices agreed to decide whether, under federal patent law, an inventor’s sale of an invention to someone who is required to keep the invention confidential constitutes “prior art” for purposes of determining whether the invention is patentable.

In Henry Schein Inc. v. Archer and White Sales, the justices will consider another case arising under the Federal Arbitration Act – specifically, whether the act allows a court to decline to enforce an arbitration agreement that gives the arbitrator the power to decide questions about arbitrability if the court believes that the arbitrability claim is “wholly groundless.” The announcement that the justices would review this case was not entirely surprising: A few months ago, the justices granted Henry Schein’s request to put the lower court’s ruling, holding that arbitration is not mandated, on hold to allow it to seek Supreme Court review. That order would have required the vote of at least five justices – one more than Henry Schein needed to get the justices to review the case on the merits.

The justices asked the U.S. solicitor general’s office for its views on two petitions: de Csepel v. Hungary, involving the Foreign Sovereign Immunities Act and a family’s efforts to recover art that they say was stolen from them during World War II; and Harvey v. Ute Indian Tribe, involving a doctrine that requires parties seeking relief in federal court to first exhaust ongoing tribal-court proceedings. There is no deadline for the solicitor general to file those briefs.

Finally, the justices declined to take up the case of Brendan Dassey, a Wisconsin man who was convicted of murder as a teenager based largely on his confession, which he recanted at his trial. Dassey’s case was featured in the Netflix documentary series “Making a Murderer.”

The justices are expected to issue at least one more order list before their summer recess, most likely on the morning after their final opinions are released.

This post was originally published at Howe on the Court.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in de Csepel and Dassey. However, I am not affiliated with the firm.]

Recommended Citation: Amy Howe, Court sends battles over services for same-sex couples, North Carolina gerrymandering back to lower courts (Updated), SCOTUSblog (Jun. 25, 2018, 10:51 AM), https://www.scotusblog.com/2018/06/court-sends-battle-over-services-for-same-sex-couples-back-to-state-court/