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Wednesday round-up

Yesterday the court heard oral arguments in a trio of high-profile civil-rights cases involving LGBT employees: consolidated cases Bostock v. Clayton County, Georgia and Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. [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.] Amy Howe analyzes the oral arguments for this blog, in a post that first appeared at Howe on the Court. Mark Walsh provides an eyewitness account of the arguments for this blog.

At Reuters, Lawrence Hurley and Andrew Chung report that the justices “appeared divided over whether a landmark decades-old federal law prohibiting sex discrimination in the workplace protects gay and transgender employees.” At The Wall Street Journal (subscription required), Jess Bravin and Brent Kendall report that “[t]he outcome will depend on whether any of the court’s five conservatives find that the concepts of sexual orientation or gender identity cannot logically be segregated from the ban on sex discrimination.” Steven Mazie suggests at The Economist’s Democracy in America blog that the result “may hinge on Justice Gorsuch, who portrayed himself as caught between a commitment to textualism and an aversion to judicial intervention in legislative matters.” At NPR, Nina Totenberg agrees that Gorsuch was “the focal point” of the arguments. Joan Biskupic reports at CNN that “[t]he tenor of the justices’ questions — preoccupied at times with shared bathrooms and showers — suggested a break with the steady pattern of advancing gay rights.” Additional coverage comes from Robert Barnes and Ann Marimow for The Washington Post (subscription required), Adam Liptak and Jeremy Peters for The New York Times (subscription required), and Shannon Bream and Bill Mears at Fox News, who report that “[o]utside the court, plaintiffs from both sides urged Congress to intervene.”

At Take Care, Leah Litman contrasts Justice Neil Gorsuch’s questions in the two cases with the interpretive principles articulated in the justice’s recent book. Additional reactions to the oral argument come from Omar Gonzales-Pagan and Greg Nevins at Lambda Legal and Lisa Keen at Keen News Service.  In an op-ed for The Hill, Kara Dansky argues that “[t]he word ‘sex’ does not equate to some vague, ill-defined concept of ‘gender identity.’” Additional commentary comes from Stephanie Taub in an op-ed at the Washington Examiner, Gregory Nevins in an op-ed at Bloomberg Law, and Maureen Collins at The Christian Post.

In an ACS issue brief, Joel Dodge argues that June Medical Services v. Gee, which asks whether a decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Supreme Court’s 2016 ruling in Whole Woman’s Health v. Hellerstedt, gives the justices a chance “to demonstrate that long-standing precedent still matters before today’s Court – and that the real lives of real women still matter under the law.” At The Atlantic, Leah Litman writes that “[t]he briefing in [June Medical] provides a glimpse into how a ruling for Louisiana could allow states to end legal abortion without overruling Roe—and also allow the Court to test the waters on whether to ultimately overturn Roe.”


  • At E&E News, Niina Farah reports that “[t]he Supreme Court’s decision [on Monday] to reject a challenge to the Mountain Valley natural gas project could signal the end of the road for disputes over an unusual quirk in pipeline eminent domain procedures — at least for now.”
  • In a separate post, Farah reports that “[p]arties on either side of a newly picked Supreme Court case on the Atlantic Coast pipeline,” U.S. Forest Service v. Cowpasture River Preservation Association, “see starkly different consequences [from the justices’] weighing in on the legal conflict.”
  • In an op-ed for Newsweek, Isa Farrington Nichols, whose niece was murdered by convicted D.C. sniper Lee Boyd Malvo, weighs in on Mathena v. Malvo, arguing that “Malvo should be resentenced—not released, but given the chance to make a case for a sentence that would allow him, at some point during his life, to demonstrate whether he has changed.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Oct. 9, 2019, 7:05 AM),