Last week, Justice Gorsuch held that Title VII of the 1964 Civil Rights Act outlaws workplace discrimination on the basis of sexual orientation or gender identity. To some it was gold leaf, a vindication of the decades-long fight for gay and transgender rights. To others it was blasphemy, an abdication of the constitutional duty of a judge. But leaving politics aside, it highlights a debate over one of the central theories of statutory interpretation: textualism. Both Gorsuch in the majority and Alito in dissent claim textualism is on their side. The fact that they come to dueling interpretations of a one-sentence statute suggests that textualism will yield unpredictable outcomes in statutory interpretation cases for years to come, irrespective of the typical “conservative” and “liberal” labels given to each of the Justices. Here is my analysis of Bostock v. Clayton County.
“Oyez, oyez, oyez!“That is the Marshal’s call, signaling to all that the Supreme Court is in session. Even though the Court is not meeting in person, the Oyezs this week rang loud and clear. The Court handed down two of the term’s biggest decisions. On Monday, Justice Neil Gorsuch held for a six-Justice majority that Title VII of the 1964 Civil Rights Act outlaws workplace discrimination on the basis of sexual orientation and gender identity. And on Thursday, Chief Justice Roberts held for a five-Justice majority that the Trump administration violated the Administrative Procedure Act when it sought to rescind Deferred Action for Childhood Arrivals, or “DACA.” Beyond these firecrackers, the Court also set off some streamers in its Monday orders list, denying a host of high-profile petitions concerning gun rights, qualified immunity, and “sanctuary” laws. In an ordinary week, the Supreme Court’s presence is not felt around the country. But this was no ordinary week. The Court made its mark—starting with Justice Gorsuch.
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.
The U.S. Supreme Court will be back in session in only TWO days. With cases concerning LGBTQ+ and transgender rights, gun control, immigration law, religious liberty, environmental regulations, insanity defenses, and other topics, the Court’s term was already shaping up to be a noteworthy one. But just yesterday, the Justices added to their docket a pair of cases involving a Louisiana abortion law, a move that will put the Court ever more in the limelight in a term that stretches into an election year. With less than 48 hours until the Nine don their black robes and take their seats at the bench, here’s a brief about what the Court did this week and what is sure to come. Get ready, folks: O.T. 2019 is just about underway!
In 1989, Ann Hopkins sued Price Waterhouse under Title VII of the 1964 Civil Rights Act, alleging that Price Waterhouse had denied her the chance of becoming a partner at the firm because she was a woman. Her case traveled all the way to the Supreme Court, where a plurality held that, given a set of both discriminatory and nondiscriminatory factors, an employer does not violate Title VII if it can prove by a preponderance of the evidence that it would have made the same employment decision even absent the discriminatory factor. In Bostock v. Clayton County (the case next term for which I will write my own opinion), the employees alleging discrimination make a litany of citations to Hopkins’ case in their briefs—especially its discussion of sex stereotyping under Title VII. Consequently, I take a look at the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins and assess subsequent legal developments and its relevancy today.