In an op-ed at The National Law Journal (subscription or registration required), John Bursch pushes back against “one of the advocates’ main arguments” in a trio of cases the court heard this week about whether federal law protects employees from discrimination on the basis of sexual orientation or gender identity, “that Title VII bans discrimination based on interracial relationships, so it must ban discrimination based on same-sex relationships too,” arguing that “race and sex are not interchangeable.” At Balkinization, Andy Koppelman calls a hypothetical question asked by Justice Samuel Alito in Tuesday’s argument “a desperation move, looking for some way to avoid the obvious implications of the statute’s plain text.” At Take Care, Amanda Shanor explains that “Justice Alito’s insinuation—that there would be no liability if an employer refused to hire a candidate knowing only that they are attracted to members of the same sex—can’t be correct.” At Keen News Service, Lisa Keen tries to “narrow down the prospects” for the cases, and Ernie Haffner suggests at his eponymous blog that the court could adopt “a middle ground position.”  Commentary on one of the cases, Harris Funeral Homes Inc. v. EEOC , which involves discrimination against transgender people, comes from Walt Heyer in an op-ed for The Washington Times and James Gottry at Townhall. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of respondent Stephens in Harris.]


  • At Bloomberg Law, Ellen Gilmer reports that “[a] top lawmaker in Maui County is calling on the U.S. Supreme Court to scrap a significant Clean Water Act case less than a month before the justices are set to hear oral arguments.”
  • Kevin Daley reports at the Daily Caller that a “coalition of brandname Fortune 500 companies, trade associations, and tech giants have intervened in a pair of marquee Supreme Court cases, urging the justices to rule for liberal social positions.”
  • At Fix the Court, Dylan Hosmer-Quint chronicles his experience attending Monday morning’s oral arguments; he arrived at 4:15 a.m. and was “no. 65 in line, just close enough to make it in the building.”
  • At Slate (via How Appealing), Adriel I. Cepeta Derieux writes that “[o]n the surface,” Financial Oversight Board for Puerto Rico v. Aurelius Investment, LLC “concerns a constitutional challenge to the board overseeing Puerto Rico’s debt restructuring[, b]ut deep questions going to the heart of the long relationship between the United States and Puerto Rico lurk just beneath[, a]nd the Supreme Court’s past reliance on offensive racial assumptions to answer those questions will again be on display.”
  • In an op-ed at Bloomberg Law, John Ellem weighs in on Mathena v. Malvo, in which convicted Washington, D.C.-area sniper Lee Boyd Malvo is asking the justices to overturn his sentence of life without parole, arguing that although “Malvo committed serious crimes when he was 17 years old and must be held accountable, … he also must be afforded constitutional protections, like all other child offenders.”
  • At National Review, Charles Cooke talks to Justice Neil Gorsuch about Gorsuch’s new book, “A Republic, If You Can Keep It.”
  • In the latest episode of the Heritage Foundation’s SCOTUS 101 podcast, “Elizabeth Slattery and Tiffany Bates discuss the Supreme Court’s new 2 minute rule and recap the week’s oral arguments.”

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Recommended Citation: Edith Roberts, Friday round-up, SCOTUSblog (Oct. 11, 2019, 6:52 AM),