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.
There is a principle in the legal field called “stare decisis.” From Latin, it translates literally to “stand by what is decided.” In layman’s terms—and in law—it means that a court ought to apply the same reasoning as it did in a prior case, and ought to rule analogously to its earlier decisions in similar cases. It is not a set-in-stone policy that entertains no deviation; the Supreme Court has, throughout its history, overruled a few dozen of its decisions. Think of Plessy v. Ferguson in 1896, in which the Court held that racial segregation was constitutional, versus Brown v. Board of Education of Topeka, Kansas in 1954, in which it held that racial segregation was unconstitutional. On Monday, the Court added one to that list, overruling one of its cases from 1979. While the subject matter of the case (state sovereign immunity) may sound anemic and technical, this Court’s demonstration—that it is not averse to overruling an earlier case—is anything but. For the ardent Court-watcher, you may remember that the question of whether the Court will overrule Roe v. Wade (the case in which the Court recognized a woman’s right to privacy in her desire to obtain an abortion) was omnipresent during the confirmation hearing of Justice Brett M. Kavanaugh. And while state sovereign immunity has virtually nothing to do with abortion, the five-member conservative bloc of the Court has now hinted that it is open to deviating from stare decisis. Here is my analysis of the Court’s decision on Monday in Franchise Tax Board of California v. Hyatt.
In January, I released my opinion in Madison v. Alabama, the Eighth Amendment capital case of Alabama death row inmate Vernon Madison, whose dementia and associated mental illnesses called into question his competency to be executed. In February, the Supreme Court published its decision in the case, in which Justice Elena Kagan wrote for a 5:3 majority that the Eighth Amendment’s Cruel and Unusual Punishment Clause may prohibit the execution of someone with a non-psychotic mental illness, if that mental illness impedes their rational understanding of the reasons for their impending execution. Today, I review the Court’s decision in Madison, including Justice Kagan’s majority opinion and Justice Alito’s dissent.