In 1989, Ann Hopkins sued Price Waterhouse under Title VII of the 1964 Civil Rights Act, alleging that Price Waterhouse had denied her the chance of becoming a partner at the firm because she was a woman. Her case traveled all the way to the Supreme Court, where a plurality held that, given a set of both discriminatory and nondiscriminatory factors, an employer does not violate Title VII if it can prove by a preponderance of the evidence that it would have made the same employment decision even absent the discriminatory factor. In Bostock v. Clayton County (the case next term for which I will write my own opinion), the employees alleging discrimination make a litany of citations to Hopkins’ case in their briefs—especially its discussion of sex stereotyping under Title VII. Consequently, I take a look at the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins and assess subsequent legal developments and its relevancy today.
I have two objectives here on SCOTUS Predictions: to cover what the Supreme Court does on a daily basis and to try my hand at what the Supreme Court does in general. This latter task is by far the more intellectually-taxing one, and I do it by selecting one case each term for which I write my own opinion before the Court releases its decision. Last term, I selected Madison v. Alabama, for which I authored a 49-page opinion holding that the Eighth Amendment prohibits the execution of a prisoner who does not rationally understand the circumstances of his execution and the reasons for which he is being put to death.
The time has come to select my next case, this time for O.T. 2019. That case—perhaps the most closely-watched case thus far of any before the Supreme Court next term—is Bostock v. Clayton County, Georgia. I will decide whether discrimination against an LGBTQ+ employee because of their sexual orientation qualifies as discrimination “because of . . . sex” under Title VII of the 1964 Civil Rights Act.
Remember when I remarked in my final brief for O.T. 2018 that the Supreme Court is unlikely to grant any cases or issue any decisions until it is back in session in October? Oops. To quote Daniel Day-Lewis’ character in Lincoln: “I’ve found that prophesying is one of life’s less-profitable occupations.” I should have listened.
Late Friday night, by a 5:4 majority, the Supreme Court stayed a June ruling issued by a federal district court in California. The district court had issued a permanent injunction against the Trump administration, barring it from using any of the nearly $2.5 billion that had been transferred to the Department of Defense’s counternarcotics fund to pay for the construction of the border wall between the United States and Mexico. The Administration appealed that ruling to the Ninth Circuit Court of Appeals, but also sought a stay of the district court’s injunction. The Supreme Court’s order permits the Administration to use those funds for border wall construction unless or until the Ninth Circuit Court of Appeals rules on the Administration’s appeal of the full case. For more on the Supreme Court’s decision, here’s a quick brief.
And thus ends the Supreme Court’s October Term of 2018. As I suspected last week, the finale came with a bang. This week, the Court issued decisions in some of its most high-profile cases all term—decisions in cases concerning the 2020 census; partisan gerrymandering; the First, Fourth, Fifth, Sixth, and Twenty-First Amendments; federal criminal law; and Auer deference under administrative law. It also released two sets of orders, in which it added a whopping 21 cases to its docket for next term. So as the curtain falls on O.T. 2018, we anxiously await the first Monday in October and the beginning of O.T. 2019. Here is your brief for the week of June 24.
Partisan gerrymandering refers to the redrawing of a state’s congressional districts with the objective of catering to the interests of one political party over another. Often, the party doing the redistricting purposefully redraws the districts in such a way as to ensure that more of their members get elected to Congress than in an otherwise fairly-drawn map. The result is either a “cracked” district—a bizarre, jagged-looking district in which the other party’s members are divided among multiple other districts, so that they do not constitute a majority in any—or a “packed” district—a small, normally urban district in which the opposing party’s members are crammed so that they win by a landslide and “waste” many votes that could have been useful elsewhere. A number of these districts have been the subject of lawsuits, which have percolated their way through the federal courts. After punting on several such cases in recent years, the Supreme Court on Thursday finally answered the question of whether federal courts can strike down partisan gerrymandering—and gave what many might say is a profoundly surprising answer.
In March of 2018, Secretary of Commerce Wilbur Ross announced his intention to add a citizenship question to the 2020 census. A collective group of eighteen states, the District of Columbia, cities and local governments, and several non-governmental organizations filed suit, claiming that the Secretary’s decision violated the Enumeration Clause and the Equal Protection Clause of the Constitution, and certain provisions of the Census Act and the Administrative Procedure Act. On Thursday, June 27, on the final day of its October Term of 2018, the Supreme Court issued its long-awaited decision in the case. Here is my discussion of Chief Justice John Roberts’ opinion for the Court in Department of Commerce v. New York.
(Note: Please excuse this almost-late, sometimes-technicality-filled post; the Court—I admit, as was expected—went bonkers with opinions this week, meaning my undergraduate brain was ground to a pulp late-night after late-night as I read 577 pages of law and wrote over 7500 words here to summarize. But all in the spirit of learning, though—right? Plus, we get to look forward to this again next week. Yippee!)
Cue the commentator’s announcement: “On the final lap, here they come into turn four, all bunched up!” Indeed. We are into the final two weeks of O.T. 2018, and the Court released a dozen—yes, a dozen—opinions this week, grouped into fours on Monday, Thursday, and Friday. In addition, the Court sent back to the lower court a hot-button, LGBTQ vs. religious liberty case from Oregon; granted and consolidated five cases concerning President Barack Obama’s appointments to Puerto Rico’s financial oversight board; and denied a petition for a stay of execution. All told, I will do my level best to briefly canvass the bevy of activity that took place this week at 1 First St. NE, Washington D.C. But—forgive the pun—don’t bet on this week’s “brief” to be very brief. Here’s your brief for the week of June 17.