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!


This Week’s Orders

The Justices met for their “long conference” on Tuesday, where they considered the reams of petitions that had piled up over the Court’s summer recess. The Court on Friday issued a preliminary set of Orders from the conference, adding a few new cases to their docket for O.T. 2019.

June Medical Services, LLC v. Gee—which immediately grabbed headlines around the country Friday morning—concerns a Lousiana abortion law that requires abortion doctors in the state to have admitting privileges at local hospitals. (“Admitting privileges” means that a doctor is a member of a hospital’s medical staff and can admit patients needing specialized diagnostic or surgical services to the hospital.) This law, June Medical Services says, places an “undue burden” on a woman’s right to obtain an abortion, in violation of the Supreme Court’s decision in Planned Parenthood v. Casey (1992). June Medical Services also cites the Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt, in which the Court struck down under Casey a similar Texas “admitting privileges” law.

In September 2018, the Fifth Circuit Court of Appeals upheld the Louisiana abortion law, arguing that it was markedly different from the Texas law struck down in Whole Woman’s Health and that its enactment would not place significant obstacles in the way of a woman trying to get an abortion. The Fifth Circuit then ordered the lower court to dismiss the case.

But in February of this year, five of the Supreme Court’s nine Justices told the lower court to hold off on dismissing the case while the Justices debated whether or not to consider the law’s constitutionality. Chief Justice Roberts provided the fifth vote, siding with the four liberal Justices to stay the order. Justices Thomas, Alito, and Gorsuch dissented and would have dismissed the case immediately. Justice Kavanaugh, by himself, penned a four-page opinion staking out a middle-ground position. The law—if it goes into effect—would give abortion doctors who do not have admitting privileges 45 days to obtain them before those doctors would be barred from performing abortions. Kavanaugh would have let the law go into effect for these 45 days. During this time, June Medical Services (and anyone interested) could survey the effect the admitting privileges requirement would have on a woman’s ability to get an abortion. Once the 45 days had passed, Kavanaugh said, then the Court should consider whether the law unduly burdens women when they seek an abortion.

The Court also granted certiorari for U.S. Forest Service v. Cowpasture River Association, which asks whether the Mineral Leasing Act gives the U.S. Forest Service the authority to grant rights-of-way along the Appalachian Trail; and United States v. Sineneng-Smith, a case asking whether a federal law (8 U.S.C. §§ 1324(a)(1)(A)(iv) and (B)(i)), which makes it a crime to encourage or induce illegal immigration for commercial or private financial gain, is unconstitutional.

Term Preview

With the addition of the Louisiana abortion law case, the Supreme Court has added to its already blockbuster-filled docket in a term that will stretch into the 2020 presidential election year.

This coming Tuesday, during only its second day of the term, the Court will hear oral argument in two Title VII cases concerning LGBTQ+ and transgender rights in the workplace. In Bostock v. Clayton County, Georgia, the Court will decide the cases of Gerald Lynn Bostock, a gay man who was fired from his job as a Child Welfare Services Coordinator in Georgia, and Donald Zarda, who was a gay skydiving instructor for Altitude Express, Inc., in New York (Zarda died during a skydiving accident while his case was progressing through the federal courts). Both men claimed that their employers fired them because they were gay and filed suit under Title VII of the 1964 Civil Rights Act. Title VII protects employees against workplace discrimination on the basis of “race, color, religion, sex, or national origin,” and the two men claim that discrimination on account of one’s sex encompasses sexual orientation as well. The only question before the Court, then, is whether Title VII’s prohibition on employment discrimination on account of sex incorporates sexual orientation discrimination. On a separate but related note, Bostock is the case in O.T. 2019 for which I am writing my own opinion. My in-depth preview of the case is available here.

Bostock‘s companion case is R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission. Here, R.G. & G.R. Harris Funeral Homes fired Aimee Stephens, who is a transgender woman. In similar fashion to Bostock and Zarda, Stephens filed suit, accusing the funeral home of firing her because she is transgender and arguing that protection against transgender discrimination in the workplace falls under the umbrella of Title VII’s protection against sex discrimination. The Court will also consider whether transgender discrimination is akin to “sex stereotyping” under Price Waterhouse v. Hopkins (1989), which I reviewed for the blog here.

Another sure-to-be-blockbuster case is Department of Homeland Security v. Regents of the University of California, which concerns the Trump administration’s push to wind down the Deferred Action for Childhood Arrivals (DACA) program. DACA is an Obama-era immigration policy in which the Secretary of Homeland Security may, at his/her discretion, refrain for two years from deporting illegal aliens who were brought to the United States as children. During this time, the alien can apply for work authorization if his/her economic situation requires it, but DACA does not confer citizenship status on any recipient. In 2014, the Obama administration sought to expand DACA but ran into a buzz saw when a collection of 25 states sued to block DACA’s expansion. After a win in federal court, the states amended their complaint to argue that DACA itself was illegal under federal law. When the Trump administration took office, rather than fight the states’ new lawsuit in federal court, the Department of Homeland Security (DHS) simply announced its intention to wind down the DACA program. A number of other states then sued the DHS, arguing that its decision violated the Due Process and Equal Protection Clauses of the U.S. Constitution and a bevy of provisions in the Administrative Procedure Act. The Supreme Court will decide whether they can even review the DHS’ decision to draw DACA to a close, and if so, whether DHS can proceed.

Gun rights are also on the Court’s docket. For a number of years, the city of New York, NY,  had a regulation on the books that banned the “transport [of] a licensed, locked, and unloaded handgun to a home or shooting range outside city limits.” The New York State Rifle and Pistol Association (NYSRPA) sued to get rid of the law, arguing that it violated the city residents’ Second Amendment rights. NYSRPA specifically pointed to the Supreme Court’s decision in District of Columbia v. Heller (2008), in which the Court held that the Second Amendment gives us the right to own a firearm for “traditionally lawful purposes,” like self-defense in one’s own home.

However, after the Supreme Court agreed in January to take up the case, the city amended the regulation and permitted city residents to transport their firearms to locations outside the city (including shooting ranges). New York then filed a petition on July 22 to declare the case moot—that is, to dismiss the case since it no longer concerns a real controversy. In the city’s own words, the new regulation “give[s] [NYSRPA] everything they have sought in this lawsuit.”

For ardent Court-watchers, you may recall two amicus briefs filed on August 12: one by 135 members of the U.S. House of Representatives (including Elijah E. Cummings (D-MD),  Jerrold Nadler (D-NY), Alexandria Ocasio-Cortez (D-NY), and Adam Schiff (D-CA)); and another by Senators Sheldon Whitehouse (D-RI), Mazie Hirono (D-HI), Richard Blumenthal (D-CT), Richard Durbin (D-IL), and Kirsten Gillibrand (D-NY). Both briefs encouraged—some might say demanded—the Court to dismiss the case. The Senators’ brief even took the eyebrow-raising—some might say inappropriate—step of calling the Supreme Court “unwell” and suggesting that the Court “heal itself before the public demands it be restructured in order to reduce the influence of politics,” igniting a firestorm of press coverage.

For its part, NYSRPA urged the Court not to dismiss the case, claiming that the city’s new regulation still violates a number of Second Amendment rights (such as failing to apply retroactively to those convicted under the regulation’s previous version). And at this point in time, it seems the Supreme Court does not want to dismiss the case as moot. Just this past month, the Court set the case for oral argument on December 2, 2019. But even if a majority eventually decides to rule on the merits of the case and not dismiss it as moot, odds are that at least a few Justices may be inclined to dissent on mootness grounds.

Other significant cases already on the Court’s docket include:

  • Espinoza v. Montana Department of Revenue: A First Amendment Establishment/Free Exercise Clause challenge to a Montana Supreme Court decision that invalidated a student-aid program because the program’s recipients could use their scholarships at private religious schools. The Montana Supreme Court held that the state-run program violated the religion clauses of the state’s constitution because student-aid money could end up in the hands of religious organizations. Petitioners asked the U.S. Supreme Court to overturn the decision, arguing that by excluding religious schools from the list of eligible institutions, Montana was favoring non-religion over religion (in violation of the Establishment Clause) and was quashing a student’s ability to attend a school of his/her religious beliefs (in violation of the Free Exercise Clause).
  • Hernandez v. Mesa: This case arises from an incident involving a U.S. Border Patrol agent and a Mexican teenager. On June 7, 2010, the Border Patrol agent, who was standing on the U.S. side of the border in El Paso, Texas, shot and killed a Mexican teenager who was standing on the Mexican side of the border in Ciudad Juarez. The Supreme Court will decide whether the victim’s family can sue for damages under Bivens v. Six Unknown Federal Narcotics Agents (1971) and whether the 1988 Westfall Act—which prohibits tort suits filed in state court against “rogue” federal law enforcement officers—is unconstitutional under the Due Process Clauses of the Fifth and Fourteenth Amendments.
  • Kahler v. Kansas: A case asking whether the Eighth and Fourteenth Amendments allow a state to abolish the insanity defense (pleading “not guilty by reason of insanity” at a criminal trial). In 2009, Kansas abolished its insanity defense plea outright.
  • County of Maui, Hawaii v. Hawaii Wildlife Fund: An environmental law case concerning distinctions in federal law between point and nonpoint source pollution. The Court will decide whether the 1972 Clean Water Act (as amended in 1977 and 1987) requires producers to obtain a permit when pollutants originate from a point source but are conveyed to waterways by a nonpoint source.
  • Ramos v. Louisiana: Another constitutional law case asking whether the Fourteenth Amendment incorporates the Sixth Amendment’s guarantee of a unanimous verdict, which says that to be convicted of a federal crime, a jury must unanimously find you guilty (otherwise it’s a “hung jury”). If the Court answers in the affirmative, the guarantee would apply not just in federal court, but in all state criminal trials too.
  • Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC: In 2016, when Puerto Rico was in dire financial straits, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA). That statute spawned the Financial Oversight and Management Board for Puerto Rico (“the Board”), whose task was to get the federal territory back on its financial feet. PROMESA gave President Obama the power to appoint the Board’s officers but did not require their confirmation by the Senate. In 2017, Aurelius Investment seized on this point, arguing that the officers’ appointments were unconstitutional under the Appointments Clause of Article II, Section 2 of the Constitution. The Supreme Court will determine whether Aurelius Investment is right.

So far, the Court has 44 cases on its docket for O.T. 2019. We can expect the Court to add more on Monday morning after it releases additional Orders from its long conference, and the Court will continue to add cases as the term progresses.

The Week Ahead

Next week begins the Court’s October Term 2019, which will run from October 7, 2019, to the end of June 2020.

On Monday, the Court at 9:30am will release the rest of its Orders from this week’s long conference. At 10:00am, the Court will begin its slate of oral arguments. First up will be Kahler v. Kansas, next will be Peter v. Nantkwest, Inc., and finally will be Ramos v. Louisiana. On Tuesday, the Court will hear oral argument in its twin Title VII cases, Bostock v. Clayton County, Georgia and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC. On Friday, the Court will meet for its weekly private conference.

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