This morning the justices issued orders from last week’s private conference. They added two new cases to their merits docket for next term and asked the Acting Solicitor General to file a brief expressing the views of the United States in a third case. But, once again, they did not act on Masterpiece Cake Shop v. Colorado Civil Rights Commission, a case filed by a Colorado man with religious objections to creating a cake for a same-sex wedding celebration.
The two grants came in cases involving bankruptcy and securities law. In US Bank National Association v. Village of Lakeridge, the justices agreed to weigh in on just one of the three questions presented by the petition: What standard of review should courts use to determine whether someone is an “insider” for purposes of the Bankruptcy Code – de novo or “clearly erroneous”? The question matters because insiders are often treated differently under the code, including when it comes to confirming a Chapter 11 reorganization plan over the objection of a secured creditor. Last year the court had asked the federal government to file a brief expressing the views of the United States on the questions presented in the case; the United States had recommended that review be denied, but today the justices nonetheless granted certiorari.
In Leidos, Inc. v. Indiana Public Retirement System, the justices will consider the intersection of the laws and regulations that govern securities fraud with a Securities and Exchange Commission regulation, Item 303 of Regulation S-K, that requires companies to disclose (among other things) “any known trends or any known demands, commitments, events or uncertainties that will result in or that are reasonably likely to result in the registrant’s liquidity increasing or decreasing in any material way.” The question now before the court is whether Item 303 creates a duty to disclose that would allow shareholders to file a lawsuit under Section 10(b) of the Securities and Exchange Act. Leidos, which was the defendant in the lower court, argues that Section 10(b) and its accompanying regulation, Rule 10b-5, do not establish an affirmative duty to disclose all material information, but instead only require the disclosure of information necessary to ensure that statements are not misleading.
And in Snyder v. Doe, the justices asked the federal government to file a brief expressing the views of the United States on whether the application of various provisions of the sex-offender-registry laws to individuals who were convicted before the laws were enacted violates the U.S. Constitution’s ban on retroactive punishment. There is no deadline for the federal government to file its brief, although it is likely to do so by fall.
In Masterpiece Cakeshop, the petition for review filed by Jack Phillips, a Colorado man who describes himself as a “cake artist” and owns a custom-cake business with his wife, has now been relisted four times. Phillips and his business argue that Colorado’s public accommodations law violates the First Amendment by mandating that Phillips create custom wedding cakes for same-sex weddings, thereby violating his sincerely held religious beliefs. There is no way to know why the justices once again put off acting on the bakery’s request. Although there is some speculation that the justices may be waiting for a ninth justice to join the court, it is worth noting that the court declined to review a similar decision by the New Mexico Supreme Court, involving a photography studio’s refusal to photograph a same-sex commitment ceremony, nearly three years ago. Another, and perhaps more likely, possibility is that one or more justices are drafting a dissent from the court’s decision to deny review in the case. The case will be up for consideration again at this Friday’s conference, so the justices could act on it as soon as Monday morning of next week.