Chemerinsky: Weighty matters load the Supreme Court's next term
Erwin Chemerinsky. Photo by Jim Block.
The U.S. Supreme Court justices return from their summer recess Monday to a calendar filled with potential blockbuster cases. Typically, about half the docket is set before the justices’ recess at the end of June, with the remaining cases taken between the beginning of October and the middle of January. But just based on what already is on the docket, this term could be filled with cases of great significance.
On the second day of the term, the court will have two oral arguments involving Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination based on race, sex or religion. In the first hour, the court will hear two cases that are consolidated for argument—Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia—that pose the question of whether employment discrimination based on sexual orientation is discrimination “because of sex.” Both cases involve men who were fired for being gay.
The plaintiffs and their amici point to the plain language of Title VII. A man who is fired for being sexually attracted to men is fired entirely for his sex; a woman who was similarly attracted to men would not have been terminated from employment. The defendants and their amici, including the Trump administration, argue that there was not discrimination based on sex because the employer treats men and women alike and would fire both gay men and lesbians. They argue that the Civil Rights Act of 1964 never intended to apply to discrimination based on sexual orientation.
The second hour of oral arguments will be in R.G. and G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. Aimee Stephens had worked for nearly six years as a funeral director for R.G. and G.R. Harris Funeral Homes in Michigan when she informed her employer that she is a transgender woman. She was fired, the EEOC sued on her behalf, and the 6th Circuit Court of Appeals ruled that Stephens’ employer discriminated based on sex in firing her.
Stephens and her amici argue that this was entirely a firing because of her sex; if she were male, she would still have the job. She also stresses that the firing was based on sex stereotypes, which the court held violates Title VII in Price Waterhouse v. Hopkins. Although Stephens and the government won in the lower court, the Trump administration filed an unusual brief for respondent in favor of reversal. The defendant and the Trump administration argue that the employer would have fired both a transgender man and a transgender women and therefore it is not discrimination based on sex.
The decisions in these cases may reflect the effects of Justice Anthony Kennedy’s departure. The majority opinion in every Supreme Court case in history expanding rights for gays and lesbians—Romer v. Evans, Lawrence v. Texas, United States v. Windsor, Obergefell v. Hodges—was written by Kennedy. Without him, the question is whether there can be a fifth vote for the plaintiffs.
On Nov. 12, the high court will hear oral arguments on a very different civil rights issue in Hernandez v. Mesa. A federal border agent, while in the United States, fired a shot across the Mexican border and killed a boy. Can the agent be sued for money damages? No federal statute authorizes suits against federal officers when they violate constitutional rights. But in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971), the Supreme Court held that a cause of action for money damages could be inferred directly from the Fourth Amendment. Since 1980, though, the court has consistently narrowed the availability of Bivens remedies.
On the next day, the court will hear oral arguments in Comcast Corp. v. National Association of African American-Owned Media, which involves the question of what must be pleaded to sue under 42 U.S.C. § 1981, which prohibits race discrimination in contracting. (Disclosure: I represent the respondent in this case). Section 1981 was adopted as part of the Civil Rights Act of 1866. Owner Byron Allen filed a complaint alleging that race was a motivating factor in Comcast refusing to carry seven of his company’s cable channels. The 9th Circuit ruled in his favor, concluding that alleging that race was a motivating factor in refusing to contract was sufficient to state a claim under Section 1981. Comcast, and the Trump administration, which has filed a brief on its side, argue that plaintiffs must meet the much more stringent standard of alleging and proving that race was the “but for” cause of the refusal to contract.
Deferred Action for Childhood Arrivals
On Nov. 12, the court will hear oral arguments in three cases—Department of Homeland Security v. Regents of the University of California, McAleenan v. Vidal and Trump v. NAACP—that involve whether President Donald Trump acted improperly in rescinding the Deferred Action for Childhood Arrivals Program.
DACA protects about 800,000 individuals from deportation. Created by President Barack Obama, DACA grants deferred deportation status to those brought to the United States before the age of 15, if they are under 30 and are in school or the military, or have graduated or been honorably discharged, and do not have a conviction for a felony or a misdemeanor.
Several lower federal courts concluded that the Trump administration violated the federal Administrative Procedure Act in rescinding DACA. Each of these courts said there must be a legitimate reason for an administrative action and none was offered for rescinding DACA. The Trump administration said it was rescinding DACA because it was unconstitutionally created by Obama. The lower courts said this was a lawful exercise of presidential prosecutorial discretion. By contrast, the Trump administration contends that the president has broad discretion in setting immigration policy and that rescinding DACA was a permissible exercise of this authority.
The stakes in these cases are enormous for the lives of these “Dreamers,” including many who are students in my law school and my university.
On Dec. 2, the court is scheduled to hear oral arguments in a major case concerning gun control and the Second Amendment, New York State Rifle & Pistol Association Inc. v. City of New York, New York. The issue is whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment and the constitutional right to travel.
New York has changed this law, so it is possible that the court will decide to dismiss the case. If not, it will be the first major ruling on the scope of the Second Amendment in over a decade since District of Columbia v. Heller in 2008.
Free exercise of religion
In Espinoza v. Montana Department of Revenue, to be argued in January, the court will consider whether it violates free exercise of religion or equal protection for a state court to invalidate a state program as violating its state constitution because it would benefit religious institutions. Montana adopted a tax credit program for parents sending their children to private secular or religious schools. The Montana Supreme Court invalidated this as violating a provision of the Montana Constitution, which prohibits direct or indirect aid to religion.
Two years ago, in Trinity Lutheran Church of Columbia Inc. v. Comer, the court ruled that it violated free exercise of religion for a state to deny religious schools funds for resurfacing playgrounds when it would provide those same funds to secular private schools. The question is how far this extends: Is the government constitutionally required to provide religious institutions whatever it gives to private secular ones?
Espinoza v. Montana Department of Revenue seems different in a key respect. After the Montana Supreme Court decision invalidating the program, the state is not providing the tax credits to anyone. Thus, the question before the court is whether invalidating the program on state constitutional grounds violates the free exercise clause.
On the first day of the term, the court will hear oral arguments in Kahler v. Kansas, which poses the question of whether a state may constitutionally eliminate the insanity defense. Kraig Kahler, who killed four members of his family, argues that the Eighth Amendment prohibits criminally punishing the insane and that due process requires a mechanism to excuse a mentally ill defendant. But Kansas argues that it is sufficient that a defendant can use insanity to deny mens rea; no insanity defense is constitutionally required.
Also to be argued that day is Ramos v. Louisiana, which focuses on whether a non-unanimous jury verdict in a criminal case in state court violates the Sixth Amendment. In Apodaca v. Oregon (1972), the court ruled that a state can permit convictions based on non-unanimous jury verdicts. Only Oregon does so; Louisiana voters repealed the state’s non-unanimity rule in 2018. The issue in Ramos is whether to overrule Apodaca and hold that the Sixth Amendment requires a unanimous jury verdict for a conviction in state courts.
These, of course, are just some of the cases already on the docket, and many more are to be added. The court may take cases to be heard this term about abortion rights, the ability of business owners to discriminate against gays and lesbians, and challenges to other actions by Trump, especially in the area of immigration. By any measure, it is going to be an exceptionally important term at the Supreme Court.