First Monday is almost upon us: the first day of the Supreme Court’s new term. This session will be the second one with the Court’s current compliment of justices and it’s looking to be a far more politically charged term than the one that ended in June.
After the nasty, will-to-power driven hearings last fall that placed Brett Kavanaugh on the Supreme Court, the new justice’s first term was a bit of an anticlimax. The Court did hear some big cases on lawyerly issues such as administrative law but the justices seemed to spend much of the term deciding not to decide the sort of high-profile, contentious cases that typically draw headlines.
Last term, the Court side-stepped a case asking whether religious objectors may defy laws prohibiting anti-LGBTQ discrimination. It rather ostentatiously dodged abortion cases, prompting Justice Clarence Thomas to complain that his colleagues turned away a pair of suits because “some respondents in these cases are named ‘Planned Parenthood.’” Notably, the biggest case of the term, a gerrymandering case called Rucho v. Common Cause, arose under the Court’s mandatory jurisdiction — meaning that the Court couldn’t refuse to take the case even if it wanted to. (The Court held that federal courts may not decide partisan gerrymandering suits ever again.)
In Kavanaugh’s second term, the Court appears much less shy, going by the cases it has agreed to hear. On Friday, the Court announced that it will hear June Medical Services v. Gee, a case that could well be the vehicle the Court’s conservatives use to gut the right to an abortion. Republicans are likely to win a big prize for their decision to muscle Kavanaugh through his confirmation hearing, a deep cut at abortion rights.
By next June, the Supreme Court also plans to decide whether federal law allows workers to be fired because of their sexual orientation or gender identity. It will likely let the Trump administration start winding down the Deferred Action for Childhood Arrivals (DACA) program that allows hundreds of thousands of undocumented immigrants to live in the United States. It plans to hear the first major Second Amendment case in nearly a decade (although that case may be dismissed for lack of jurisdiction). And looming on the horizon is a potential showdown over Obamacare.
Perhaps the justices simply feel comfortable with their new colleague and are ready to shake things up. Perhaps it feels that the memory of Christine Blasey Ford has faded enough that the Court can risk shining a spotlight on itself again. Whatever the reason, the Court appears eager to return to America’s hottest political and cultural fights. And it will return to them without the relatively moderate conservative Justice Anthony Kennedy around to temper the Court’s decisions.
Will the right to an abortion survive this term?
The Court will hear June Medical Services v. Gee, a case involving a Louisiana anti-abortion law that is virtually identical to one the Supreme Court struck down in its 2016 decision in Whole Woman’s Health v. Hellerstedt.
Both Gee and Hellerstedt involve a law requiring abortion doctors to obtain admitting privileges at a nearby hospital. As the Court explained in Hellerstedt, it is unusually difficult for abortion providers to obtain this credential and the credential itself does little, if anything, to make abortions safer.
Indeed, abortion advocates have a term for the kinds of laws at issue in Hellerstedt and Gee, “targeted restrictions on abortion providers,” or “TRAP” laws. These are laws that run afoul of a rule the Supreme Court announced in its 1992 decision in Planned Parenthood v. Casey: “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”
Nevertheless, the Fifth Circuit upheld the Louisiana law in Gee — prompting a dissent from Judge Patrick Higginbotham (a Reagan appointee, as it happens), who accused his colleagues of failing “to meaningfully apply the undue burden test as articulated in Casey and clarified in Whole Woman’s Health.”
The biggest open question in Gee is how just how deep the Supreme Court is going to cut into the right to an abortion. It could simply uphold the Louisiana law, while keeping Roe v. Wade nominally on the books. Or it could potentially strike down Roe altogether.
Ultimately, however, the distinction between these two outcomes could be quite minimal. If the Court allows states to enact TRAP laws, anti-abortion lawmakers are likely to use that new power quite aggressively — placing more and more expensive burdens on clinics until it is literally impossible for those clinics to operate.
Is it legal to fire someone for being LGBTQ?
On Tuesday, the second day of the term, the Supreme Court will hear three cases that will determine whether it is legal to fire someone because of their sexual orientation or gender identity. Altitude Express Inc. v. Zarda and Bostock v. Clayton County both involve gay men who allegedly lost their jobs because of their orientation. R.G. & G.R. Harris Funeral Homes v. EEOC involves a trans woman who was fired by a boss who claims he would be “violating God’s commands” if he allowed a trans employee “to deny their sex while acting as a representative of [the] organization.”
These three cases are also the Court’s first major foray into LGBTQ rights since Kennedy’s retirement. Kennedy often voted with his liberal colleagues on gay rights cases, and he wrote landmark opinions protecting marriage equality and striking down so-called “sodomy” laws. So Zarda, Bostock, and Harris Funeral Homes could tell us whether it is possible to assemble a pro-LGBTQ majority in the post-Kennedy Court.
The stakes for LGBTQ workers in these cases are obviously quite significant. But the three cases take on even greater importance because they are ultimately disputes about how courts should behave when they encounter a statute whose explicit language calls for a result that the authors of the statute never would have imagined.
Let me explain. All three cases involve Title VII of the Civil Rights Act of 1964, which bans employment discrimination “because of” an individual’s “race, color, religion, sex, or national origin.” And there’s little doubt that the members of Congress who enacted this law in the mid-1960s did not believe that they were banning discrimination against LGBTQ workers when they did so.
When the Civil Rights Act became law, the queer rights movement was still in its infancy. The Stonewall Uprising was still five years away. One year after the Civil Rights Act became law, activists asking the government to lift a ban on gay federal employees received a response that was so hostile that it is almost unprintable. The federal government did not lift this total ban on hiring gay employees until 1975.
Yet, the Supreme Court has also been very clear that it does not matter what Congress thought Title VII would or would not accomplish when it was enacted; what matters is its expansive language barring all discrimination “because of … sex.” That language suggests that any workplace discrimination that turns upon the gender of the worker is forbidden.
Take Oncale v. Sundowner Offshore Services (1998), which involved a man who claimed he was sexually harassed by his male coworkers.
As Justice Antonin Scalia explained for a unanimous Court in Oncale, “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” Nevertheless, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
Thus, a victim of same-sex harassment could prevail if they can show that concerns about gender drove the harassment. As Scalia explained, “If a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace,” Title VII forbids that conduct.
Given this background, Zarda, Bostock, and Harris Funeral Homes should all be easy cases — at least as a textual matter. The employers in Zarda and Bostock allegedly fired male employees because those employees are attracted to men. But presumably those employers permit female employees to be attracted to men. So both employers allegedly engaged in sex discrimination by treating male employees different from female employees.
Similarly, the employer in Harris Funeral Homes believes that Aimee Stephens, the plaintiff in that case, is a man. The employer also believes that only people who are assigned the female gender at birth may present as women. That’s discrimination “because of … sex.” The employer treats its employees that it believes to be male different from how it treats employees it believes to be female.
So Zarda, Bostock, and Harris Funeral Homes are not simply landmark LGBTQ rights cases. They are tests of whether several conservative members of the Court who claim to be “textualists” — that is, they claim to believe that the text of the law should always prevail over what its drafters intended to accomplish — are willing to hew to their stated principles when the text of a law points in a liberal direction.
Can DACA continue?
Two interlocking mysteries unite a trio of cases — Trump v. NAACP, McAleenan v. Vidal, and Department of Homeland Security v. Regents of the University of California — that concern the fate of the Obama-era Deferred Action for Childhood Arrivals (DACA) program. The Court plans to hear these cases on November 12.
The human stakes in these cases are enormous. As of last year, the federal government estimated that over 700,000 undocumented immigrants benefit from the DACA program, which allows many undocumented immigrants who came to the United States as children to remain in the United States and to work in this country.
Yet the legal issue at the heart of these cases is minuscule. There’s no real doubt that the Trump administration may rescind DACA. Indeed, one of the opinions now being reviewed by the Supreme Court states explicitly that the administration “indisputably can end the DACA program.” And yet, multiple courts blocked the administration’s attempt to do so, largely due to a glorified paperwork error.
As a general rule, these courts have explained, the judiciary may not review the executive branch’s policy-based decision to wind down DACA. So if the administration were to produce a memo that announces that DACA will end — and that also gives one or more policy-based reasons why it should end — the courts will not question that memo.
Instead, the Department of Homeland Security’s 2017 memo announcing its intention to wind down DACA rested on a claim that DACA is illegal. And if the administration gives a legal reason to end the program, rather than a policy reason, then the lower courts have concluded that they are allowed to review that legal justification.
All of which is a long way of saying that these are three cases about virtually nothing. The Trump administration could end DACA tomorrow if it chooses to do so. It just has to complete its homework assignment first.
Which brings us back to the two interlocking mysteries at the heart of these cases. The first mystery is why the Trump administration hasn’t just issued a new memo. It’s possible that the answer is incompetence, but it’s also possible that they haven’t done so because they want the Supreme Court to answer the legal question of whether any president can create a program like DACA.
In 2016, during the brief interregnum after Scalia’s death when the Supreme Court was down a justice, the Court split 4-4 on whether President Obama’s efforts to expand DACA and create a similar program known as DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) were legal. Though the Court’s decision did not explicitly state how each justice voted, the questions at oral argument suggest that the Court split along party lines.
Since then, the Court has only grown more conservative and Republicans regained their majority. That means it is very likely that, should the Court reach the question of whether DACA is legal, there are now five votes to strike the program down and prevent a future president from restoring it.
And that brings us to the second mystery, which is why the Court decided to hear this case in the first place. That is, did the highest Court in the land really decide to take up this case to answer a picayune question about whether the Trump administration filed the correct paperwork? Or does it want to reach the much larger question of whether programs like DACA are allowed to exist at all?
How much will the Court’s new majority expand the Second Amendment?
Last November, the late Justice John Paul Stevens offered a rare window into the Supreme Court’s secretive internal deliberations. At Stevens’s urging, the late justice told the New York Times’ Adam Liptak, Justice Anthony Kennedy asked for several lines to be added to a landmark Second Amendment opinion which limited that opinion’s holding.
That opinion, the 2008 decision in District of Columbia v. Heller, was the Supreme Court’s first decision holding that the Second Amendment protects an individual right to bear arms. Likely due to Kennedy’s intervention — Kennedy cast the key fifth vote — it’s also heavily caveated. Heller suggests that “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” all remain valid, as do bans on “dangerous and unusual weapons.”
Kennedy, however, is retired, and his replacement, Kavanaugh, has very different views about guns. As a lower court judge, Kavanaugh wrote a dissent suggesting that banning semi-automatic assault rifles is unconstitutional.
Which brings us to New York State Rifle & Pistol Association Inc. v. City of New York, New York, which the Court is expected to hear in December. New York State Rifle is the first major Second Amendment case to receive a full hearing from the justices in nearly a decade — and it is the first such case since Kennedy was replaced by Kavanaugh — so it offers the Supreme Court a vehicle to significantly expand the scope of that amendment if it has the votes to do so.
The actual law at issue in New York State Rifle is fairly small potatoes. Until recently, New York City only allowed gun owners with a specific, limited form of gun license to keep a gun inside the home and to shoot it at a list of seven firing ranges. The plaintiffs include gun owners who wish to bring their guns to ranges that are not on this list, and a gun owner with two homes who wishes to be able to transport a gun between them.
It’s also, well, an ex-law. Shortly after the Supreme Court agreed to hear this case, New York City changed its rules to give the New York State Rifle plaintiff the specific relief that they seek in court, and then the New York state legislature passed a law that effectively prevents the city from reinstating its old rules again.
So there’s a chance that the Supreme Court will dismiss the case as moot as there is no longer any real controversy between the opposing parties. Even if it does dismiss the case, however, that’s only likely to delay a reckoning on guns. Eventually the Supreme Court will find a case that is not moot, and that will give the post-Kennedy Court an opportunity to reshape the Second Amendment however it wants.
What does a victim of discrimination need to prove in order to win their case?
The Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins permitted Title VII plaintiffs to file “mixed-motive” suits, which arise when a worker alleges discrimination based on a mixture of permissible and impermissible factors. Imagine, for example, a situation where two managers reach a joint decision to fire a black worker. If one of those managers was motivated by racism while the other simply believed the worker was underperforming, that could form the basis of a mixed-motive lawsuit by the fired worker.
Mixed-motive suits can shift the burden of proof from the plaintiff to the defendant, who would need to show that the company would have taken the same action against the employee even if bigotry did not weigh into the company’s decision-making at all.
Two years after Price Waterhouse, Congress enacted a law that explicitly provides for mixed-motive suits in Title VII cases. That law, however, did not extend to many other civil rights laws, and the Roberts Court has generally been hostile to arguments that mixed-motive suits are available in other contexts.
Thus, in Gross v. FBL Financial Services (2009), the Supreme Court held that mixed-motive suits are not allowed under a federal law prohibiting age discrimination. And in University of Texas Southwestern Medical Center v. Nassar (2013), the Court held that mixed-motive suits are not available to plaintiffs who claim their employer retaliated against them because the employee “opposed, complained of, or sought remedies for, unlawful workplace discrimination.”
Comcast Corp. v. National Association of African American-Owned Media, which the Court will hear in November, involves a Reconstruction-era statute that provides that everyone shall enjoy the same contractual rights as are “enjoyed by white citizens.” The plaintiff in that case is a black-owned media company that claims that Comcast refused to carry its stations for racist reasons. (Disclosure: Comcast is an investor in Vox Media, the parent company of Vox.com.)
The Supreme Court will decide whether mixed-motive suits are available under this post-Civil War discrimination ban. Given the Court’s decisions in Gross and Nassar, the answer to that question is likely to be “no.”
Indeed, Justice Clarence Thomas’s opinion in Gross — a 5-4 decision decided along familiar ideological lines — is unusually candid about why the Court reached the decision it did in that case. Responding to the argument that it should treat age discrimination cases the same way it treated Title VII cases in Price Waterhouse, Thomas wrote that “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.”
The Roberts Court’s conservative majority, in other words, did not feel that it needed to follow the reasoning of prior precedents handed down by more liberal majorities.
Can federal agents be sued directly when they violate the Constitution?
The facts of Hernández v. Mesa are simply appalling.
The Supreme Court summarized these facts in an earlier iteration of this case: In June of 2010, Sergio Hernández, a 15-year-old Mexican boy, was with his friends on the Mexican side of the US-Mexico border. They were playing a game where “they ran up the embankment on the United States side, touched the fence, and then ran back down.” Eventually, Border Patrol Agent Jesus Mesa arrived on the scene, where he allegedly detained one of Hernández’s friends. Hernández, meanwhile, ran away from Mesa and back into Mexican territory.
Agent Mesa allegedly then fired two shots across the border at Hernández. One of those shots “struck Hernández in the face and killed him.”
The United States, for its part, claims that Mesa fired his gun after “smugglers attempting an illegal border crossing hurled rocks from close range at a [Customs and Border Patrol] agent who was attempting to detain a suspect.” The plaintiffs claim that “Hernández was unarmed and unthreatening at the time.”
The specific issue before the Court concerns whether Mesa, the border agent, should be personally liable to Hernández’s survivors under a 1971 Supreme Court decision called Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.
“An agent acting — albeit unconstitutionally — in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own,” Justice William Brennan explained for the Court in Bivens, and so the federal courts should remedy such harms by allowing people injured by a federal agent’s unconstitutional actions to sue the agent directly.
Subsequent decades have not been kind to Bivens, however. According to a federal appeals court decision denying relief to Hernández’s family, “Bivens claims are now a distinctly ‘disfavored’ remedy and are subject to strict limitations.”
“The threat of Bivens liability could undermine the Border Patrol’s ability to perform duties essential to national security,” Judge Edith Jones of the United States Court of Appeals for the Fifth Circuit argued in that lower court decision, adding that “implying a private right of action for damages in this transnational context increases the likelihood that Border Patrol agents will ‘hesitate in making split second decisions.’”
Ultimately, in other words, Hernández comes down to a values judgment. Will a majority of the Supreme Court agree with Justice Brennan that the awesome power given to federal agents calls for consequences if they abuse that power? Or will it agree with Judge Jones that federal agents should not hesitate to make “split second decisions,” even in confusing situations where the life of a child is on the line? A decision adopting Jones’s moral calculus, moreover, could have profound implications for other constitutional violations by federal agents — including suits against ICE agents who violate the rights of immigrants.
Will the courts repeal Obamacare in its entirety?
Finally, there is a decent likelihood that the Supreme Court will have to hear the latest case seeking to repeal the Affordable Care Act before this term is up.
The legal theory underlying Texas v. United States is widely viewed as ridiculous, even by many conservative legal scholars who spent the better part of the last decade trying to convince federal courts to weaken or abolish Obamacare. As originally enacted, the Affordable Care Act’s “individual mandate” requires most Americans to either carry health insurance or pay higher taxes. A 2017 amendment to the law effectively repealed the mandate by reducing the amount of this tax to zero dollars.
The plaintiffs argue that the zeroed-out mandate is now unconstitutional and that the proper remedy for the fact that Obamacare now contains an unconstitutional provision that literally does nothing is to toss out the entirety of the law. As two Republican state attorneys general quipped in a brief opposing this argument, “to describe the [plaintiffs’] approach is to refute it.”
Nevertheless, at oral arguments last July, a panel dominated by two Republican appointees to the Fifth Circuit appeared determined to strike down the law. Should they follow through, the Supreme Court will almost certainly take up the case — and depending on when the Fifth Circuit hands down its decision, the justices could do so as soon as this term.
Thus, the brief period when the Supreme Court seemed to shy away from the most contentious issues appears likely to come to a close this term. And the Court could potentially thrust itself into massive controversies involving LGBTQ rights, immigration, guns, abortion, and Obamacare just in time for the 2020 presidential election to heat up.