This Week’s Brief: October 7

Congratulations: 1 week of the Court’s term is down, three dozen (or more) to go. Though its first full day in session was relatively quiet, Tuesday landed with a bang. Garnering headlines throughout the nation were oral arguments in three cases concerning LGBTQ+ and transgender rights in the workplace. Transcripts and full audio recordings of these cases (as well as the three heard on Monday) are linked here. After a three-month summer sabbatical, your weekly briefings on the action at the U.S. Supreme Court are back. Here’s your brief for the week of October 7—the first week of the Court’s O.T. 2019.


This Week:
Oral Arguments: 5
Cert. Grants: 0
GVR’s: 21

O.T. 2019:
Cases Decided: 0
Cases Remaining: 44
Weeks Left in Term: 37



First on Monday morning, the Court released more Orders from its long conference last week. It was an incredibly long list, but the Court did not add any new cases to its docket. The Court granted, vacated, and remanded (GVR’ed) 21 cases, telling the lower courts to look at their decisions again in light of a Supreme Court opinion. Many of these cases were mirror images from cases the Court decided this past term, so the Supreme Court wants to give the lower courts the first opportunity to consider and apply the Supreme Court’s decision in their own cases.

The Court did issue an order in its only Second Amendment case on its docket so far, New York State Rifle & Pistol Ass’n. v. City of New York. The Court denied the city’s motion to declare the case moot, instead telling the parties they should prepare to discuss the matter when the Court hears oral argument in December. If you recall from my term preview, New York City amended the regulation at issue and then asked the Court to dismiss the case, saying the regulation no longer presented a live, Second Amendment controversy. Riding shotgun were dozens of House and Senate Democrats in two amicus briefs, notably calling the Supreme Court “unwell” and demanding it “heal itself before the public demands it be restructured in order to reduce the influence of politics.” Dismissing the case as moot, the amici suggested, would be a step in the right direction. But evidently the Court didn’t think so, or at least refused to bow to partisan, political urgings. Sure, some members of the Court—or perhaps even a majority—may decide to render the case moot in the end, but it appears the Court wants to hear argument on this point before they would do so.

Oral Arguments:

The first case argued this term was Kahler v. Kansas. In 45 U.S. states, if John Doe is accused of a crime and brought to trial, John can plead “not guilty by reason of insanity,” or some derivation thereof. But Kansas essentially got rid of its insanity defense in the 1990s (and four other states have adopted a similar approach). In Kansas, if John Doe kills someone and knows he killed someone, John cannot plead not guilty by reason of insanity—even if he killed the individual because he was delusional and believed a demon told him to do so. John can only use his mental illness to argue for a lesser sentence, not to plead insanity. This, the petitioner in Kahler says, is unconstitutional. Kansas disagrees. The question the Justices must decide is whether a state can abolish its insanity defense plea under the Eighth and Fourteenth Amendments. The oral argument in Kahler is available from the Supreme Court via audio and transcript.

The second case the Court heard on Monday was Peter v. NantKwest, Inc. NantKwest is a statutory interpretation case involving U.S. patent law (35 U.S.C. § 145). If the U.S. Patent and Trademark Office (USPTO) denies an applicant a patent, the applicant can appeal. One way of doing so is to file a civil suit against the director of the USPTO in a federal district court. If the applicant chooses this method, then the applicant must pay “[a]ll the expenses of the proceedings” under §145. But if the USPTO incurs expenses when its own employees, including its in-house counsel, defend the agency in this kind of a civil suit, does the applicant have to pay these attorney’s fees too? That is the question the Court will decide. The oral argument in NantKwest is available from the Supreme Court via audio and transcript.

The last argument heard on Monday was Ramos v. Louisiana, another constitutional law case, this time involving incorporation. When the Bill of Rights was enacted, it originally was intended to apply only to the federal government. But in time, the Supreme Court recognized that nearly every provision of the Bill of Rights must apply to the states as well under the Fourteenth Amendment (this is called the “incorporation doctrine”). There are only a few provisions of the Bill of Rights that have not yet been incorporated against the states. One of these is implicit in the jury clauses of the Sixth Amendment. Under the Federal Rules of Criminal Procedure, if John Doe is to be convicted of a federal crime, the trial jury must unanimously convict him. In most states, this holds true too. But not in all: in Louisiana and Oregon, John can be convicted of a state crime by a non-unanimous jury. The question before the Justices is whether to incorporate the unanimous jury guarantee against the states. The oral argument in Ramos is available from the Supreme Court via audio and transcript.


The Court heard two hours of oral argument in three of its momentous cases all term—cases dealing with the rights of LGBTQ+ and transgender employees.

First on the tee was Bostock v. Clayton CountyGeorgia, the case for which I will be writing my own opinion before the Court publishes its decision. Title VII of the 1964 Civil Rights Act outlaws employment discrimination on the basis of “race, color, religion, sex, or national origin.” Two gay employees who were fired sued their employers, alleging that their employers sacked them because of their sexual orientation and claiming that their terminations violated Title VII’s protection against discrimination “because of . . . sex.” They assert that “sex” as used in Title VII encompasses sexual orientation and urge the Justices to rule for them on this ground. Conversely, their employers (as well as the U.S. Department of Justice (DOJ)) say that “sex” literally meant “sex” then and means it now, and recommend that the Justices do not expand Title VII’s language. The oral argument in Bostock is available from the Supreme Court via audio and transcript. (The other, consolidated case is Altitude Express, Inc. v. Zarda.)

The companion case is R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Comm’n. Here, a transgender woman (Aimee Stephens) sued her employer under Title VII, alleging that her termination violated the same “because of . . . sex” language. In addition to arguing that “sex” ought to envelop gender identity, Stephens points to the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, which I reviewed for this blog in August. One part of Justice William Brennan’s majority opinion in Hopkins discussed sex stereotyping claims under Title VII. In Harris Homes, Stephens argues that discriminating against transgender employees is akin to sex stereotyping under Hopkins, and similarly is barred under Title VII. On the other side of the lectern, her employer and the DOJ hold the opposite view on both counts. They say that “because of . . . sex” should not be expanded to gender identity, and that the Sixth Circuit distorted the Court’s decision in Hopkins when it ruled for Stephens on the sex stereotyping ground. The Justices will consider both of these points when it issues its decision. The oral argument in Harris Homes is available from the Supreme Court via audio and transcript.


The Supreme Court issued a rare miscellaneous order Wednesday morning in an arbitration case between the Los Angeles Rams (a professional football team) and a number of entities in St. Louis, Missouri (“respondents”), the city in which the Rams used to play. The Rams sought to enforce a 1995 arbitration agreement in a dispute between them and respondents, but a federal district court permitted respondents to file a civil suit against the football organization and declined to send any of the Rams’ claims to arbitration. The Rams then petitioned the Supreme Court to stay the district court’s mandate. But in a short, unsigned order Wednesday, the Supreme Court denied the petition.


The Court held no proceedings on Thursday.


The Court met for its weekly private 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 on Tuesday, October 15.

The Week Ahead

The Court is off on Monday due to the federal holiday. On Tuesday morning, at 9:30am, we can expect Orders from this Friday’s conference. At 10:00am, the Court will hear 80 minutes of oral argument in Financial Mgmt. & Oversight Bd. for Puerto Rico v. Aurelius Investment, LLC. On Wednesday, the Court will hear oral argument in three cases. First is Kansas v. Garcia, second is Rotkiske v. Klemm, and third is Mathena v. Malvo. On Friday, the Court will meet for its weekly private conference.

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