Legal scholars: SCOTUS can't be forced to reconsider "made-up" case — but lawyers can be punished

Professors push back on ex-solicitor general's claim that SCOTUS can be compelled to reexamine 303 Creative case

By Areeba Shah

Staff Writer

Published July 3, 2023 3:45PM (EDT)

Neil Gorsuch (Chip Somodevilla/Getty Images)
Neil Gorsuch (Chip Somodevilla/Getty Images)

Legal scholars pushed back on former acting Solicitor General Neal Katyal's claim that the Supreme Court may be compelled to reexamine a recent case after evidence surfaced that the claim at the heart of the case may have been fabricated.

In the federal lawsuit filed preemptively seven years ago by Lorie Smith, the graphic artist cited a request from a man who says he never asked to work with her, according to the Associated Press. But Smith cited a man named Stewart in 2017 court documents including a website service request from him, which detailed his phone number and email address.

When Melissa Gira Grant, a writer for The New Republic, contacted Stewart, he said that no such thing had happened. Stewart told the outlet that he was not gay, has been married to a woman for 15 years and is a web designer himself.

The Supreme Court on Friday ruled in favor of the Christian web designer in Littleton, Colo., who argued that free speech protections allowed her to reject designing wedding websites for same-sex couples.

Katyal suggested that the Supreme Court should revisit the ruling given the evidence.

"The Supreme Court has a procedure to seek a rehearing, so to say, 'Hey Supreme Court, there's a new fact that emerged and we need you to revisit your ruling,' so that's possible. The Supreme Court can also on its own ask for a briefing on this new question on whether this case is made up," Katyal told MSNBC.

"Conservatives right now are defending the decision saying that Roe v. Wade, Roe wasn't pregnant at the time of the decision and that's different," he continued. "Roe was pregnant at the time of the filing of the complaint so she was having the exact problem that she was trying to remedy, namely seeking an abortion because she was pregnant. Here, this web designer has never once done a website for an LGBT couple. It's the exact opposite situation it's totally hypothetical and made up. I think the Colorado attorney general should consider bringing a rehearing petition before the U.S. Supreme Court."

But legal scholars pushed back on Katyal's argument.

"I think this is a nonstarter," former U.S. Attorney Barb McQuade, a University of Michigan law professor, told Salon. "The Court glossed over standing in this case because a plaintiff is permitted to make a facial challenge to a law on the ground that yet violates the First Amendment."

"If the allegations about fabrication are true, then the lawyers may have an ethics problem to address with their state bar, but it will not affect the outcome of the case," McQuade added.

Leah Litman, a law professor at the University of Michigan, told Salon that parties are "free to file a motion for reconsideration or rehearing," but ultimately, it will be up to the court to decide whether to do anything about it. 

"Attorneys are subject to judicial discipline & discipline from bar organizations if they lie to the court," Litman said.

Longtime Harvard Constitutional scholar Laurence Tribe told Salon that Katyal "certainly knows that no state attorney general has any such authority," adding that he doesn't take Katyal literally when he suggests that. 

"But it would be a mistake to let that obscure the central fact that the entire case was based on entirely hypothetical 'worries' that the web designer claimed to have about how the state's officers might come after her under the state anti-discrimination laws if a same-sex couple were to ask her to design a wedding site for them and if she were to refuse," Tribe said. "In my view, the disgraceful fact, which in no way depends on the falsity of the allegations about the fellow who supposedly asked Lorie Smith to design a website for a same-sex wedding, is the very fact that the Supreme Court's majority was willing to render what amounted to an advisory opinion that it would never have done but for its eagerness to denigrate same-sex marriage and LGBTQ rights generally and that, under Article III, it had no business doing."

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In 303 Creative LLC v. Elenis, Smith claimed that a state anti-discrimination law prevented her from entering the wedding website business. The law would not allow her to publish a message on her website that let her express her religious beliefs. 

The statement read: "I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God's true story of marriage—the very story He is calling me to promote."

Justice Neil Gorsuch, writing on behalf of the majority, stated that a lower court had determined a reasonable assumption based on Colorado's actions in previous cases involving same-sex marriages. The majority of the court concluded that the state of Colorado could not legally require her to create websites that conveyed messages conflicting with her belief that marriage should only be between a man and a woman.

Sherrilyn Ifill, former president of the NAACP Legal Defense Fund, said that the claim in the case "is potential fraud on the Court," which "warrants investigation, potential vacatur & disciplinary proceedings."

"It also should be seen as a consequence of the Court's apparent zeal to hear this case which did not meet standing even w/o fraud," Ifill tweeted. In another tweet, she added that attorneys "are prohibited by ethical & procedural rules from making misrepresentations to the Court. If this story about 'Stewart' was made by her lawyers in briefs, or at arguments, it's a serious issue."

By Areeba Shah

Areeba Shah is a staff writer at Salon covering news and politics. Previously, she was a research associate at Citizens for Responsibility and Ethics in Washington and a reporting fellow for the Pulitzer Center, where she covered how COVID-19 impacted migrant farmworkers in the Midwest.

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