This Week’s Brief: April 22

Starting this week, I will be publishing a weekly summary of the Supreme Court’s proceedings. These “briefs” will be published over the weekend and will review the events that took place at the Court over the past week, including Orders, Oral Arguments, and any published Opinions. Check in every weekend for your rundown of what happened at the Supreme Court and for a brief snapshot of what is on the next week’s schedule.

The Supreme Court had an incredibly busy past few days. The Court granted certiorari in five cases, three of which concern employment discrimination rights for LGBTQ+ and transgender employees.  It heard oral argument in seven cases (the last arguments of the term), including the addition of a citizenship question to the 2020 census and a Fourth Amendment challenge to a state law allowing a blood draw from an unconscious motorist. Finally, the Court released an opinion with significant ramifications in the context of arbitration agreements, and also dismissed a case from its docket as improvidently granted. This is the Brief for the week of April 22.


Opinions: 2*
Oral Arguments: 7
Cert. Grants: 5
CVSGs: 0
* 1 Case DIG’ed


On Monday the Court first released its Orders list from its conference last Friday. The Court granted review for five cases, three of which will be blockbuster additions to the Court’s docket for next term as they involve the status of LGBTQ+ and transgender rights in the workplace. In Altitude Express v. Zarda, the Court will decide whether Title VII of the 1964 Civil Rights Act, which protects against employment discrimination “because of . . . sex,” also applies to sexual orientation. The case will be consolidated with Botsock v. Clayton County, Georgia, which similarly concerns the extension of employment discrimination protection to gay and lesbian employees. The third case, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, will determine whether Title VII of the same Act applies to transgender workers either because of their status as transgender or based on sex stereotyping under the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins.

The other two cases granted will concern less contentious matters. In CITGO Asphalt Refining Co. v. Frescati Shipping Co., Ltd., the Court will resolve a circuit split and decide whether, under federal maritime law, a “safe-berth” clause in an oceanic voyage charter contract is meant to guarantee a ship’s safe passage or is simply a duty of due diligence. And in Barton v. Barr, the Court will determine whether a legal, permanently-residing immigrant can be “render[ed] . . . inadmissible” under 8 U.S.C. § 1229(b)(d)(1) if the immigrant commits a crime that would make him otherwise inadmissible if he had not yet been granted legal immigrant status. More on the Orders can be found in Amy Howe’s post at SCOTUS Blog.

The Court then heard oral argument in two, somewhat mundane cases. The first, Food Marketing Institute v. Argus Leader Media, is a statutory interpretation case involving the meaning of the word “confidential” in an exemption in the 1977 Freedom of Information Act. At SCOTUS Blog, Mark Fenster, professor at the University of Florida’s Levin College of Law, has a preview and reviews the oral argument. The second case, Fort Bend County, Texas v. Davis, boasts another circuit split regarding whether an employee alleging employment discrimination under Title VII of the Civil Rights Act must file a discrimination claim with the Equal Employment Opportunity Commission before pursuing a lawsuit in court. Charlotte Garden at the Seattle University School of Law has a preview and an analysis of the oral argument.


The biggest Supreme Court headlines of the week surely concern Tuesday’s first argued case, Department of Commerce v. New York: the challenge to the Trump Administration’s push to add a citizenship question to the 2020 Census. The Court heard 80 minutes of argument and will effectively decide whether Commerce Secretary Wilbur Ross’ decision to add the question violates the Enumeration Clause of the Constitution. Amy Howe at SCOTUS Blog has a preview and a review of the oral argument. Garret Epps also previewed the case for the Atlantic. More analysis of the oral argument can be found from Andrew Chung and Lawrence Hurley for Reuters, Adam Liptak for the New York Times, and Robert Barnes and Mark Berman for the Washington Post. A decision is expected by the end of June.

The Court also heard argument in two other cases. In Mitchell v. Wisconsin, the Court debated whether a Wisconsin state law that permits police officers to draw blood without a warrant from an unconscious motorist in order to test for levels of intoxication violates the Fourth Amendment’s Warrants Clause. Again, Amy Howe previews the case and analyzes the oral argument at SCOTUS Blog. Finally, the Court heard arguments in Rehaif v. United States, a mens rea (or “criminal intent”) case in which an illegal immigrant was found to be in possession of a firearm. When the federal government prosecuted the illegal alien under 18 U.S.C. § 924(a)(2), a dispute arose as to whether the government must prove that the alien knew he was illegally in possession of a firearm, or whether the government must also prove he knew he was in the country illegally. Evan Lee, professor at the California–Hastings College of Law, previews the case and analyzes the oral argument.

Finally, the Court dismissed Emulex Corp. v. Varjabedian as improvidently granted, that is, removed the case from the docket on the ground that the Court should not have granted review in the first place. Such dismissals are rare, and the Supreme Court generally does not explain why it dismisses a case as improvidently granted. Generally, however, the Supreme Court seems to do this on one of three occasions: after granting review, they discover something new, in either the record or the law, that significantly impacts their decision in the case; one (or both) of the parties arguing the case attempts to switch the points on which they are arguing; or, perhaps, the Court seemingly cannot reach a consensus and decides to simply dismiss the case. Ronald Mann for the Columbia Law School discusses some of the dismissal’s potential effects. More on “DIGs” (cases “dismissed as improvidently granted”) can be found here.


On Wednesday, the Court released its opinion in Lamps Plus, Inc. v. Varela, a 1926 Federal Arbitration Act case, in which it ruled on ideological lines that an employee cannot rely on an ambiguous arbitration agreement to compel class-action arbitration.

Frank Varela, Petitioner, filed in federal court a class action complaint against his employer, Lamps Plus, Inc., who argued the arbitration agreement mandated individual arbitration. The District Court ruled for Lamps Plus, Inc. in that the claim could only be pursued in arbitration, but also ruled for Varela in that he could arbitrate on a class-wide basis. The Ninth Circuit Court of Appeals affirmed, first holding that the arbitration agreement was ambiguous as to whether class-action arbitration was required, and then employing the contra proferentem doctrine (a common law rule requiring that ambiguous arbitration agreement clauses be interpreted against the author of the agreement) against Lamps Plus, Inc.

Writing for a 5:4 majority, Chief Justice Roberts reversed the Ninth Circuit’s holding, concluding that the ambiguous class-action arbitration language in the contract between Lamps Plus, Inc. and its employees did not provide a sufficient contractual basis on which Varela could rely to compel arbitration on a class-wide basis. Justice Thomas wrote a concurring opinion, and Justices Ginsburg, Breyer, Sotomayor, and Kagan all wrote dissenting opinions. Charlotte Garden reviewed the opinion for SCOTUS Blog, and Robert Barnes analyzed the decision for the Washington Post.

Following the release of its opinion in Lamps Plus, Inc., the Court heard oral argument in two more cases. Following a circuit split, the Court in Quarles v. United States will decide another mens rea case, this time under the 1984 Armed Career Criminal Act, involving whether the definition of generic “burglary” under the Supreme Court’s 1990 decision in Taylor v. United States requires proof that the burglar intended to commit a crime before breaking into the home or building, or that the burglar formed the intent to commit a crime during his intrusion into the building. Rory Little, professor of law at California–Hastings, previews the case and reviews the oral argument for SCOTUS Blog. The second case, Taggert v. Lorenzen, asks whether the Bankruptcy Code (U.S. Code, Title 11) protects from civil contempt a creditor’s “good-faith belief” that a particular collection activity does not violate the bankruptcy discharge injunction. Ronald Mann at SCOTUS Blog previewed the case and has a summary of the oral argument.


The Court had no proceedings on Thursday.


The Court met for its weekly Friday Conference, at which it routinely reviews the petitions on its docket and decides whether to grant certiorari for any of them. We can expect news from this Conference in the Court’s Orders list next week. Some high profile petitions awaiting action on Court’s docket include a challenge to an Indiana state abortion law; a trio of cases concerning the Department of Homeland Security’s push to whittle away at the Deferred Action for Childhood Arrivals policy; and a First Amendment religious objection to designing and creating a custom wedding cake for a same-sex wedding, a case analogous to the questions presented in last term’s Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n.

Next Week’s Preview

On Monday, the Court at 9:30am EDT will release Orders from this Friday’s Conference. At 10:00am, there is a possibility of opinions. There will be no more oral arguments this term; all cases have been submitted, so weekly proceedings will focus exclusively on Conferences, Orders, and Opinions.


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