Tuesday round-up

Today the justices will hear oral argument in a trio of high-profile employment-discrimination cases. The first two cases, Bostock v. Clayton County, Georgia and Altitude Express, Inc. v. Zarda, are consolidated for one hour of oral argument and ask whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of … sex,” covers discrimination based on sexual orientation. This morning’s second argument is in R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, in which the court will decide whether Title VII bars discrimination against transgender people based either on their status as transgender or on sex stereotyping. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of respondent Stephens in Harris.] Amy Howe previewed both cases for this blog. Subscript Law has a graphic explainer. Zora Franicevic and Soo Min Ko preview Bostock for Cornell Law School’s Legal Information Institute. Cornell’s preview of Harris comes from Julia Canzoneri and Robert Reese Oñate.

Tucker Higgins reports at CNBC that “[w]hile the court has expanded the rights of LGBT individuals in recent years, holding that same-sex marriage is protected by the Constitution, for instance, it has yet to apply protections to the workplace.” For The Wall Street Journal (subscription required), Jess Bravin reports that “[m]ore than 20 states and many local governments specifically protect LGBT employees from discrimination, … [b]ut Congress has been stalemated on the issue for decades, failing to pass laws clarifying whether employers remain free to dismiss employees because of sexual orientation or gender identity.” At NPR, Nina Totenberg reports that “[t]he Trump administration, reversing the position of the Obama administration, will argue in the Supreme Court against the LGBTQ employees.” For USA Today, Richard Wolf reports that “[h]ow the court rules may come down to the comparison justices make.”

At Take Care, Aaron Tang explains why “[p]ermitting employers to discriminate against LGBT employees would open to the door to the same kind of discrimination against millions of Americans of faith.” The editorial board of The Wall Street Journal cautions that “the question before the Justices is not whether discrimination against gay or transgender workers is bad policy or morally wrong[:] It is whether judges can rewrite a law merely because cultural mores change.” In an op-ed for the Journal, Ashley McGuire argues that the plaintiffs “are asking the justices to conflate sex with what is now known as gender identity,” which “weakens the legal status of the sex that laws such as Title VII and Title IX are designed to protect.” Additional commentary comes from Leah Litman, also at Take Care, and from Gregory Nevins in an op-ed for The National Law Journal (subscription or registration required), who points to “eight relatively unknown cases … that … form the basis of the irrefutable analogy, under Title VII, between discrimination against employees in interracial relationships and employees in same-sex relationships.”

Yesterday, the court issued additional orders from its conference last Friday; the justices denied New York City’s request that New York State Rifle & Pistol Association Inc. v. City of New York, New York, a challenge to New York City’s limits on transporting personal firearms, be dismissed as moot, directing the parties to be prepared to discuss the mootness question at oral argument on December 2. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. Tucker Higgins reports for CNBC that the court “denied a petition from pizza giant Domino’s … to hear whether its website is required to be accessible to the disabled, leaving in place a lower court decision against the company.”

Yesterday the justices began their term by hearing oral argument in Kahler v. Kansas, which asks whether the Constitution allows states to abolish the insanity defense. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. For USA Today, Richard Wolf reports that the argument featured “a debate about what it means to be insane.”

The court also heard argument yesterday in Peter v. NantKwest, which asks whether a federal law allowing a patent applicant to seek review of a patent denial in district court but requiring the applicant to pay “all the expenses of the proceeding” includes expenses for Patent Office personnel, including attorneys. Ronald Mann analyzes the argument for this blog.

Yesterday’s third argument was in Ramos v. Louisiana, in which the court considered whether the Sixth Amendment’s guarantee of a unanimous jury applies to the states. Amy Howe analyzes the argument for this blog, in a post that first appeared at Howe on the Court. At Bloomberg Law, Jordan Rubin reports that “Evangelisto Ramos may well go on to win his argument that his 10-2 murder conviction in Louisiana violates the Constitution, but to do so, a majority of the court needs to grapple with how to get past a 1972 decision that condoned non-unanimous convictions at the state level.” Jess Bravin reports for The Wall Street Journal that in both Ramos and Kahler, “the court appeared inclined to buttress the rights of criminal defendants against states that had reduced historic protections for the accused, with only Justice Samuel Alito, a former U.S. attorney who generally sides with law enforcement, expressing clear sympathy for prosecution positions.” At the Daily Caller, Kevin Daley reports that both cases “presented interesting problems without obvious solutions.”

Mark Walsh has a first-hand view of all three of yesterday’s arguments for this blog. Kimberly Robinson reports at Bloomberg Law that the “justices abided by their new guidance suggesting a two-minute quiet period at the start of advocates’ oral arguments, though some justices were quick to jump in at the two minutes’ conclusion.” At The National Law Journal, Tony Mauro reports that “[t]wo minutes turns out to be a long time with a court whose members are accustomed to asking questions almost immediately after the lawyer says ‘May it please the court,’” and that “[i]t may have felt long, but it also felt civil.”

AP reports that “[e]lite universities are urging the U.S. Supreme Court to preserve a federal program that shields young immigrants from deportation.” At Newsweek, Chantal da Silva reports that “United We Dream, a cross-country network of immigrant youth, has filed what the organization has touted as the ‘first-of-its-kind’ Supreme Court amicus brief to be delivered in part through video in its battle to stop the Trump administration from terminating the Deferred Action for Childhood Arrivals (DACA) program.” Another look at some of the amicus briefs in Department of Homeland Security v. Regents of the University of California comes from Naaz Modan at Education Dive.

NPR’s Politics podcast features a discussion of the “flashpoint issues” on the table this term, featuring Scott Detrow, Domenico Montanaro and Nina Totenberg. In an op-ed for the Washington Examiner, Adam Carrington writes that whereas “[l]ast year, very few Supreme Court cases caught national attention, … this term, the docket is rife with cases of massive consequence.”

Briefly:

• At CNN, Ariane de Vogue reports that “[t]hree presidential electors in Washington state who voted for Colin Powell in 2016 rather than Hillary Clinton and were fined under state law are asking the US Supreme Court to take up their appeal and decide whether a state can bind an elector to vote for the state’s popular vote winner.”
• At The Federalist, Margot Cleveland weighs in on June Medical Services v. Gee, a challenge to Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital, pointing out that the “Supreme Court could hold that the abortion providers lack standing to challenge Louisiana’s admitting-privileges law.”
• In an op-ed at Fox News, Kelly Shackelford observes that the new term offers the court “ample opportunity to continue its recent trend of returning to the Constitution’s original text and meaning regarding religious liberty.”
• At CNN, Catherine Valentine recounts how three sexual-assault victims “shared their stories on camera ahead of the Supreme Court’s new term, when the high court will decide whether to take up a Justice Department request to overturn the military appeals court’s ruling applying a five-year statute of limitations” in rape cases.
• At The Daily Citizen, Bruce Hausknecht looks at what Justice Neil Gorsuch’s new book, “A Republic, If You Can Keep It,” tells us about “the issue of judicial independence.”

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