The justices' two-week break between the end of the March argument cycle and start of April arguments is coming quickly to an end. Before we “spring” into the new cycle (has winter finally left D.C.?), a veteran Supreme Court advocate shares his reason for writing a very personal blog post on the pending Masterpiece Cakeshop challenge. A former U.S. solicitor general takes his Supreme Court victory six years ago on behalf of a death row inmate back to the lower court and scores another win for his pro bono client. And, we give you a sneak peek at the forthcoming documentary, RBG, opening in theaters in May.

Thanks for reading, and your feedback is welcome: [email protected] and [email protected].

|

“It's Not Just About Cakes”

Several times in the past two decades as the Supreme Court made inroads on discrimination against gays and lesbians, veteran Supreme Court advocate Paul Smith undoubtedly could have written a personal article as a gay person about how those cases might affect him and the gay community.

But the pending case of the Colorado baker, Jack Phillips, who refused to make a cake for a gay couple because of his religious beliefs, struck a chord in Smith. On April 7, the Balkinization blog ran an unusual and very personal Smith post entitled: “The Real Cost of Masterpiece: It's personal.”

“My sense was the public debate over this case has been very sympathetic to Mr. Phillips, which is somewhat understandable,” Smith tells the Supreme Court Brief. “I was trying to figure a way to illustrate the harm of unexpected rejection in a commercial setting like that. This seemed a way to highlight the particular vulnerability of the gay community in the current world. It's not just about cakes.”

To that end, Smith wrote about the “stress of the constant decisionmaking” on how “out” to be in a given situation. From Smith's essay:

➤➤ “At work, you are meeting a new colleague or client. Do you reveal yourself? You're walking down the street on a sunny day. Do you hold hands with your spouse? For most of us, even in today's relatively enlightened times, to be gay or lesbian (or bisexual or transgender for that matter) is to go through life making decisions multiple times a day about how to relate to those we encounter, weighing the value of honesty against the risk of rejection or even violence.”

But there is comfort, he explained, in states that ban sexual orientation discrimination by stores and other places of public accommodation.

Smith wrote: “Sure, we may still have to deal with the hotel clerk who cannot understand why I and my husband are sharing a room or why we don't want two beds. But we'll get to check in, and thereafter we'll be treated with respect. And that is a great reassurance.”

If the Supreme Court rules for Phillips, that reassurance will disappear, Smith said. And the question of how “out” to be “becomes even more fraught if there is a risk, every time we walk into a business, that we will be sent away, judged morally unworthy by the person whose goods or services we were just trying to buy.”

Smith says it was easier to write such a personal article now that he has left Big Law, where he chaired Jenner & Block's Supreme Court and appellate practice. He now is vice president for litigation and strategy at the Campaign Legal Center. He has two voting rights cases awaiting decision by the justices.

“It's also just easier as you become more senior in the world and less worried about the business element,” Smith says. “In the law firm environment, you're always worried about your persona and how it's going to appeal to whomever the next client might be.”

Phillips is a “perfectly admirable person,” says Smith. But his lawyers, he says, are using his case to return the gay community to second-class citizenship. “It's important to recognize the consequences of giving him his opportunity to turn people away.”

|

RBG's Big Screen Debut

The much-awaited RBG documentary will debut in theaters on May 4, but I (Tony here) was lucky to see it at a sneak preview event.

Early viewers are not supposed to give too much away, but suffice it to say that it is extremely well-done, giving equal attention to Justice Ruth Bader Ginsburg's childhood, her family life, her groundbreaking advocacy for gender equality in the 1970s, her rock-star popularity and, yes, her time as a judge on the D.C. Circuit and the U.S. Supreme Court. The audio excerpts from her Supreme Court arguments are especially illuminating.
Bring a hanky: There are poignant moments about her and two men in her life who are no longer with us: husband Martin Ginsburg and longtime friend Antonin Scalia.

But it's not all sad. One lighter moment came when Ginsburg's adult children Jane and James revealed they used to keep a “Mommy Laughed” book to chronicle when their usually serious mother cracked a smile. Even funnier, and heartwarming, is the fact that in this must-see movie, the 85-year-old Ginsburg laughs quite a bit.

A Death Row Victory, Again, for Gregory Garre

Six years ago, Gregory Garre, head of Latham & Watkins' Supreme Court and appellate practice, persuaded the justices that Alabama death row inmate Cory Maples deserved federal court review of his claims of ineffective assistance of counsel even though he had missed a crucial filing deadline.

A 7-2 majority, led by Justice Ruth Bader Ginsburg, held that Maples was blameless for the missed deadline. His two pro bono lawyers had left their law firm, Sullivan & Cromwell, without notifying him or the state court which had denied his state post-conviction appeal. The notice of the denial, mailed to the law firm, was returned unopened to the court.

“Maples was disarmed by extraordinary circumstances quite beyond his control,” Ginsburg wrote. “He has shown ample cause, we hold, to excuse the procedural default into which he was trapped when counsel of record abandoned him without a word of warning.” The case was remanded for federal court review.

Garre and his team had represented Maples on a paid basis in the Supreme Court, but following the Supreme Court's decision, they continued on a pro bono basis.

“After the Supreme Court issued its decision, I didn't feel it was appropriate to say, 'The Supreme Court has given you your day in court. Good luck,'” recalled Garre.

On remand, a federal district court held that the state habeas court's denial of Maples' claims was not unreasonable. But on April 5, a 2-1 panel of the U.S. Court of Appeals for the Eleventh Circuit disagreed and ordered the district court to hold an evidentiary hearing.

► “The state habeas court did not merely misconstrue a few facts in the record; the court—in a capital case—relied on the wrong set of facts. And that error led to a decision based on factual conclusions that cannot be reconciled with the record,” Judge Charles Wilson wrote. New and more extensive allegations, he wrote, “identify powerful, more in-depth mitigation evidence, and establish a reasonable probability that, but for trial counsel's deficient performance, the result of Maples' penalty-phase proceeding would have been different.”

An evidentiary hearing for Maples was always the goal, Garre said. He and the firm plan to stick with the case. “We'll get involved folks who focus on aspects of trial court practice,” he said.

The case was “a huge commitment,” said Garre. “We've filed hundreds of pages of briefs at the district court and court of appeals levels. Obviously the stakes are so high in these cases that it's easy to commit the time and resources necessary to make the strongest possible arguments.”

Latham partner Scott Ballenger worked on the Supreme Court case, which Garre argued. “Lots of fantastic associates” also contributed, Garre said, including summer associates who helped him prepare for the Eleventh Circuit arguments.

“I've been on both sides of death penalty cases,” said Garre, a former U.S. solicitor general. “As is always true, being on other side, you can see things from a different perspective. Habeas petitioners in these circumstances face daunting challenges.”

ICYMI: Gorsuch Loves His 'Dream Job'

–> Justice Neil Gorsuch loves his “dream job,” and ignores the criticism, his friends tell us.

–> Reuters looks at signs of struggle at the high court as the pace of issuing opinions comes to a crawl.

–> Ropes & Gray lawyers in an Arkansas same-sex marriage case return to the Supreme Court in a fight over legal fees.

–> Circuit courts might allow judging from the grave, but that doesn't happen at the Supreme Court.

Thanks always for reading Supreme Court Brief. We appreciate your feedback: [email protected] and [email protected].