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.

Title VII makes it unlawful for any employer to discriminate against an employee because of that employee’s “race, color, religion, sex, or national origin.” Congress passed and President Lyndon B. Johnson signed the Civil Rights Act in 1964, and it was amended in 1991 to strengthen its penal severity. Ever since, Title VII of the Civil Rights Act has been the principal statute on which employees rely to bring claims alleging discrimination in the workplace. The Act also formed a little thing called the Equal Employment Opportunity Commission (EEOC), to which employees go to file charges of employment discrimination before proceeding to litigation in the federal courts.

But in this day and age where the number of gay, lesbian, etc. persons has increased markedly since the Act’s passage, LGBTQ+ employees have begun to regard Title VII as a statute that insulates them from workplace discrimination aimed at their sexual orientation—not just the five things Title VII explicitly enumerates. This implores the EEOC, the federal courts, and all others who informally adjudge their claims to ask the following question: Does Title VII protect LGBTQ+ employees against employment discrimination on the basis of their sexual orientation? This is the only question that matters in the case, and therefore the only one I—and the Court—must consider.

The schedule moving forward will look a little like this: All briefs—from Petitioners, Respondents, or third-parties—will be filed by September 16 (there are already 42 amicus briefs). The Court hears oral argument on Tuesday, October 8. After that, the Court will decide the case sometime before the end of next June. However, given that this case—as hot-button a case though it may be—will be argued early in O.T. 2019, I suspect the Court is more likely to issue its decision next Spring (perhaps late-March or April) than it is to wait until late-May or June. On the other side of the coin, I will be thoroughly shocked if the decision comes before February, given the case’s subject matter. At any rate, this means I likely will publish my opinion here on SCOTUS Predictions sometime between January and March of 2020.

Stay tuned.

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