SCOTUS News, June 8th, 2018: Phillips Takes the Cake

This week, the Supreme Court released five opinions. One brief per curiam opinion dealt with a mootness problem concerning a detained immigrant who undertook an abortion. Two other cases deal with questions about sentencing guidelines. The Justices also dealt with a bankruptcy-related dispute. And in this week’s main event, the so-called “cake case” finally reaches some resolution.

Koons v. US

The District Court sentenced Koons and other co-petitioners based on mandatory minimum sentences. These mandatory minimums fell below the range set by the Sentencing Guidelines. After the petitioners’ sentencing, the Sentencing Commission reduced the range of the Guidelines. Petitioners then sought to reduce their sentences, using a rule allowing reconsideration if the Guidelines change. The lower courts declined to further reduce petitioners’ sentences, however.

The case came up to the Supreme Court, and the Court affirms the lower courts’ refusal to reduce the petitioners’ sentences. The main reason is that the sentences weren’t based on the Guidelines, but on mandatory minimum sentences, as well as petitioners’ assistance to the government during their cases. The District Court did nothing to establish that the Sentencing Guidelines played a relevant part in the sentencing scheme.

Alito writes a brief opinion for the unanimous Court. In it he states that the Sentencing Guidelines’ ranges are advisory, and tentative. A congressionally mandated minimum sentence – present in this case- supersedes the advisory nature of the Guidelines. He lays out rebuttals to the petitioners’ other counterarguments. These counterarguments all essentially fail because of a misunderstanding of the Guidelines’ purpose. The Guidelines are only one factor in a sentencing decision that must defer to mandatory minimums and to reductions requested by the government because of petitioners’ assistance.

Hughes v. US

This case concerns many of the same aspects of law as Koons above. This case differs on a few key facts, though. For starters, Hughes’ sentence resulted from a plea agreement authorized under federal rules. After his plea agreement and sentencing, as in the Koons case, the Sentencing Commission amended the Sentencing Guidelines to a reduced amount. Both the District Court and the Eleventh Circuit denied Hughes’ motion for a reduced sentence because his plea agreement “did not expressly rely on a Guidelines range.”

This case bears a strong resemblance to a case from seven years ago, Freeman v. United States. There, only a plurality opinion controlled, and the Justices thus did not arrive at a clear rule for lower courts to use in cases like this. Due to the unique fault lines of that case, the controlling rule seemed to have been established by only one Justice, Sotomayor, writing a separate, narrower concurrence.

So this case addresses several different issues: the ripple effects throughout the justice system of the disagreement post-Freeman, as well as the actual issue here. Since six Justices comprise a majority here, the question of how lower courts should proceed on similar issues is no longer a dangling ellipsis.

SCOTUS reverses the lower courts, ruling in favor of Hughes. Unlike in Koons, the factual record of this case makes it apparent that the plea agreement was based on the Sentencing Guidelines. The District Court calculated Hughes’ sentence based on the Guidelines. This “basis” usage differs considerably from the mandatory minimum and government assistance considerations in Koons. Indeed, Kennedy points out – citing a prior case in the judicial record – that “…district courts have in the vast majority of cases imposed either within-Guidelines sentences or sentences that depart downward from the Guidelines on the Government’s motion.”

Kennedy, writing for the majority, sums it up well with this: “Since the Guidelines are a district court’s starting point, when the Commission lowers the range, the defendant will be eligible for relief … absent clear demonstration … that the court would have imposed the same sentence regardless of the Guidelines.”

In a brief concurrence, Sotomayor offers an olive branch, of sorts, to the majority here. She reiterates her reservations from Freeman. She remains reluctant to wholly advance the Court’s interpretation of the retroactive readjustment of Sentencing Guidelines, but does join the majority opinion.

The dissent also returns to the opinion they espoused in Freeman. A sentence pursuant to a plea agreement, properly imposed, must stand once a court accepts it. Changes to Sentencing Guidelines should have no impact.

Lamar, Archer, & Cofrin LLP v. Appling

Appling owed legal fees to the law firm of Lamar, Archer, & Cofrin. When Appling filed for Chapter 7 bankruptcy, the law firm claimed that Appling’s debt could not be discharged because of a clause in bankruptcy law that makes false representations non-dischargeable. Appling moved to dismiss this, claiming that his alleged misrepresentation was only a statement respecting his financial condition, and thus governed by a different clause. The Bankruptcy Court denied Appling’s motion, and the District Court affirmed this denial. The Eleventh Circuit reversed, pointing out that Appling’s misrepresentative statements were about only a single asset, and were not in writing. Appling’s statements respecting his financial condition were made orally, and this matters to the Justices.

In fact it matters so much that SCOTUS unanimously affirms the Eleventh Circuit’s judgment. Crucially, Appling’s alleged false statement was only verbal, and only concerned a single asset. The lower courts decided that these factors meant that Appling’s statements were not “respecting” his financial condition. The Eleventh Circuit, and now SCOTUS, view things differently. The word “respecting” has a “broadening effect, ensuring that a provision’s scope covers not only its subject but also matters relating to that subject.” Historically, also, “… Courts of Appeals [have] consistently construed the phrase to encompass statements addressing just one or some of a debtor’s assets or liabilities.” To consider statements like Appling’s in some sort of vacuum would be incoherent, Sotomayor writes.

The Court was unanimous here, except with regard to Part III-B, in which Thomas, Alito, and Gorsuch do not join. In Part III-B, Sotomayor writes of the Bankruptcy Code affording relief to the “honest but unfortunate debtor”. Lamar claimed that the Circuit Court’s interpretation of this case made it too easy for people like Appling to rack up debt, and then discharge it in bankruptcy. Sotomayor, writing for herself and the five remaining Justices, states that the simple solution for Lamar – and any would-be creditor – is to obtain a debtor’s statement about their financial condition in writing.

Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission

By now you’ve likely heard the story. A same-sex couple – Charlie Craig and Dave Mullins – asked Jack Phillips to create a cake for their wedding. Phillips refused on religious grounds. Under Colorado law, this discrimination dispute went before the Colorado Civil Rights Commission. The Commission found Phillips’ religion-based excuse unconvincing, and they ruled against him.

The Court reverses here, granting Phillips a reprieve. He refused to bake a cake with a specific message, but he did not outright refuse to sell other products to the couple. Kennedy draws a careful line to delineate that the former would qualify as speech, and thus be protected by the First Amendment, while the latter would be a clear-cut case of discrimination.

In his 18-page majority opinion, Kennedy recaps the many details of the case, and flexes his rhetorical skills. His point, though, is rather straightforward: There is a delicate balance between protecting the rights of gay citizens, and respecting First Amendment speech and free exercise rights of all religious beliefs.

“The Civil Rights Commission’s treatment of [Phillips’] case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.” The Commission used some harsh words that caused its objectivity to crumble in the eyes of Kennedy and the majority. “The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.” These comments by the Commission were simply “inconsistent with what the Free Exercise Clause requires.”

This attention to the Commission’s conduct is what makes the ruling narrow. The commissioners’ comments toward Phillips at his hearing cast doubt on their ability to adjudicate the case fairly. In the final paragraphs of the majority opinion, Kennedy makes it clear that the specific facts of this case render untenable any potential blanket rule addressing similar situations with a clash between anti-discrimination statutes and First Amendment rights. The majority’s emphasis on the Commission’s specific conduct toward Phillips is the primary reason why seven Justices rule in his favor.

The media were all over this case. The country was all over this case. And just about every Justice had something unique to say, either in concurrence or dissent.

Kagan, with Breyer (Concurring)

First up is Kagan. “I join the Court’s opinion in full because I believe the Colorado Civil Rights Commission did not satisfy th[e] obligation …” to give religious views neutral and respectful consideration.

She elaborates on a different set of cases that went before the Colorado Civil Rights Commission. In these cases, an individual, William Jack, went into various bakeries with the express intent of ordering cakes with offensive language. These bakeries refused to print his messages. Kagan describes how these refusals differ from Phillips’ refusal. The bakery owners who refused Jack’s requests would have refused to make such offensive statements no matter who ordered them. This kept those cases in line with the Colorado Anti-Discrimination Act (CADA).

“By contrast, the same-sex couple in this case requested a wedding cake that Phillips would have made for an opposite-sex couple.” Spiking Gorsuch’s following concurrence, Kagan reminds the Court that there was nothing inherently different between the cake Craig and Mullins asked for, and a cake any heterosexual couple may have walked into the store and asked for. “The cake requested was not a special “cake celebrating same-sex marriage.” It was simply a wedding cake…”

Nevertheless, Kagan and Breyer stick with the majority opinion in full. This is because Kennedy’s opinion “limits its analysis to the reasoning of the [Commission] …” and the Colorado Court of Appeals. Such analysis was, as Kennedy writes, tainted by a clear hostility toward religion.

Gorsuch, with Alito (Concurring)

Gorsuch writes that just because the Commission found Mr. Phillips’ religious beliefs “offensive” does not adequately justify infringing his free exercise rights. He, too, refers to the other cases dealing with William Jack’s arguably similar requests of other bakers. There is not a substantial difference between the other cases, Gorsuch opines, where bakers refused Jack’s requests because they found his message offensive. Phillips, too, refused to serve Craig and Mullins because he found their message offensive.

Gorsuch argues that the Commission changed their threshold criteria between the different cases. This rendered some offensive requests refusable, but not others, and created a slippery slope of subjective analysis. “The facts show that the two cases share all legally salient features. In both cases, the effect on the customer was the same: bakers refused service to persons who bore a statutorily protected trait … In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers.”

Thomas, with Gorsuch (Concurring in part)

Gorsuch also joins a partial concurrence by Thomas. Agreeing with the majority’s take on the Commission’s overriding Phillips’ free exercise, he focuses instead on free speech concerns. The Colorado Court of Appeals’ reasoning “flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak.” He notes that a public-accommodations law concerns conduct, not speech, but that the danger of these laws lies in how courts sometimes apply them in ways that burden free speech. An important aspect of speech not carefully considered in the lower courts, is that an individual should be able to “decide ‘what not to say’ and ‘tailor’ the content of his message as he sees fit.”

Phillips is an artist, and his creation of wedding cakes is expressive. This argument reflects lines of questioning from oral argument. And, Thomas argues, “[b]y forcing Phillips to create custom wedding cakes for same-sex weddings, Colorado’s public-accommodations law” goes too far by altering the form of Phillips’ expression. Thomas also cites other ways in which Masterpiece Cakeshop, and Phillips, exercise their speech rights in ways that limit the business’s activities.

Thomas also discusses the futility of the bakery posting a disclaimer about their opinions on same-sex marriage. For the government to impose that kind of burden would be a bridge too far, compelling speech over individuals’ First Amendment objections. Furthermore, “States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified.” Otherwise, much of what passes as free speech could be regulated as offensive, which would cripple the First Amendment. And the Court has ruled many times in the past in favor of hate groups targeting homosexuals, minorities, and other classes of people. If the First Amendment cannot protect offensive speech, then the right to free speech loses a significant aspect of its importance.

Ginsburg, with Sotomayor (Dissenting)

Finally, the dissent. Ginsburg starts off by noting that “Phillips points to no case in which this Court has suggested the provision of a baked good might be expressive conduct.” This oversight creates tension between Phillips’ role in the dispute, and the government’s assertion of what that role means.

But Ginsburg’s main point is that the “hostility to religion” the Commission purportedly displayed is not substantial enough to throw this case in favor of Phillips. “The proceedings involved several layers of independent decisionmaking, of which the Commission was but one.”

But the more crucial fact here is one that the majority somewhat glosses over. Namely, that “Craig and Mullins simply requested a wedding cake” with no message that distinguished the cake they wanted from any other that Phillips would have sold. Phillips denied Craig and Mullins the same service he gave to any other customers asking for a wedding cake. This lack of a distinguishing message points out critical flaws in the majority opinion, and particularly in some of the concurrence. “Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it.” This, Ginsburg argues, is precisely the kind of situation where the Colorado Civil Rights Commission should be expected to intervene on behalf of people like Craig and Mullins.

Despite this brief, clarifying dissent, SCOTUS rules 7-2 in favor of Phillips.


The FantasySCOTUS Crowd

A lot for the Crowd to consider this week. For starters, what appears to be a strange miss in the Koons case. The massive outcome disparity here likely has more to do with the question presented, and how the resolution of the case affects the petitioners. The petitioners retained their already reduced sentences; the Justices merely declined to create a rule that would have potentially muddied the waters. Indeed, it’s a good idea to guess reverse. Unless, that is, a reversal would necessitate a massive workaround, as it likely would have in this case and other cases like it. In fact, Kennedy’s majority opinion in Hughes makes mention of the fact that Koons is really the outlier case of the two sentencing guidelines-based decisions this week. We’re sure the Crowd agrees.

koons united states

Koons v. US

3 out of 4 cases isn’t bad, though. The Crowd nailed Appling, and though they missed Roberts, Thomas, and Alito dissenting in Hughes, they were certainly on the right track.

Hughes united states

Hughes v. US

The cake case also shouldn’t dampen the spirits of our Crowd members. For a lot of reasons – many of them evident in the Justices’ writing – to assume a 5-4 split in this case, with Kennedy falling in with the more conservative Justices, was a good idea.

masterpiece cakeshop colorado civil rights commission

Masterpiece Cakeshop v. Colorado Civil Rights Commission

Few predicted that SCOTUS would cut a very finely tuned, customized ruling based on the very detailed, colorful facts of this particular case. Kennedy’s limited opinion was enough to peel Breyer and Kagan off of a dissent, but it also makes cases like this one a distinct likelihood in the future.

The Crowd is still producing a strong showing compared to previous years, and could even beat its own personal best accuracy rate this term. With a lot of cases left in this term, it’s too soon to make any calls like that. Check back here next week for more updates on the Supreme Court, and if you haven’t already, sign up for the remainder of the term at

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