This Week’s Brief: October 14

The Justices met for their second full week of the term. The Court added four cases to its merits docket, heard oral arguments in another four cases, and gave us all a couple interesting nuggets in its orders list (including a dismissal of a case that might already win the award for the “Strangest Cert Petition of the Term”). For your weekly recap of the action at 1 First St. NE, here’s your brief for the week of October 14.

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This Week’s Brief: October 7

Congratulations: 1 week of the Court’s term is down, three dozen (or more) to go. Though its first full day in session was relatively quiet, Tuesday landed with a bang. Garnering headlines throughout the nation were oral arguments in three cases concerning LGBTQ+ and transgender rights in the workplace. Transcripts and full audio recordings of these cases (as well as the three heard on Monday) are linked here. After a three-month summer sabbatical, your weekly briefings on the action at the U.S. Supreme Court are back. Here’s your brief for the week of October 7—the first week of the Court’s O.T. 2019.

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Weekly Brief and Term Preview

The U.S. Supreme Court will be back in session in only TWO days. With cases concerning LGBTQ+ and transgender rights, gun control, immigration law, religious liberty, environmental regulations, insanity defenses, and others, the Court’s term was already shaping up to be a noteworthy one. But just yesterday, the Justices added to its docket a pair of cases involving a Louisiana abortion law, a move that will put the Court ever more in the limelight in a term that stretches into an election year. With less than 48 hours until the Nine don their black robes and take their seats at the bench, here’s a brief about what the Court did this week and what is sure to come. Get ready, folks: O.T. 2019 is just about underway!

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Brief in Recess: September 11

Earlier this summer, the Supreme Court stayed an injunction against the Trump Administration, which had barred it from using nearly $2.5 billion in interdepartmental transfer funds for construction of the border wall. Tonight was Part II. The high court lifted another injunction that had been issued against the Administration, this one concerning the latest asylum rule promulgated in July. Justices Sotomayor and Ginsburg dissented. With less than a month until the Court is back in session, it seems clear the Justices are not shy of acting on their summer shadow docket. Here’s a summary of the case, the Court’s order, and Justice Sotomayor’s dissent.

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Brief in Recess: September 4

Wednesday night, the Supreme Court denied a Texas death row inmate’s petition for a stay of execution. There were no noted dissents, but Justice Sotomayor did write a two-page opinion respecting the Court’s decision. Sotomayor shed light on a possible discrepancy between the Court’s decision in Gonzalez v. Crosby in 2005 and subsequent practices by some of the nation’s federal appeals courts. Here’s a quick brief of the case and Justice Sotomayor’s opinion.

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Brief in Recess: August 22

Editor’s Note: Following this post’s publication Friday afternoon, the Supreme Court issued a press release stating that Justice Ginsburg has completed a three-work course of radiation therapy to treat a tumor on her pancreas. The tumor was found on July 31 after routine blood tests, and a biopsy confirmed it was a malignant, but localized growth. The release noted that Ginsburg “tolerated treatment well,” that there is “no evidence of disease elsewhere in the body,” and that she needs “no further treatment . . . at this time.”


We are just past the halfway point in the Court’s summer recess. Late last night, the Supreme Court denied a Florida inmate’s petition for a stay of execution. While there were no noted dissents, Justice Sotomayor penned a brief opinion respecting the denial. Here’s a quick brief about the case to get you up to speed.

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Jurisprudence: Price Waterhouse v. Hopkins

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.

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Case Selection 2019: Bostock v. Clayton County

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.

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Brief in Recess: July 26

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.

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This Week’s Brief: June 24

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.

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