Tuesday round-up

Yesterday the Supreme Court released one of its most eagerly anticipated decisions of the term, holding in Bostock v. Clayton County, Georgia and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission that federal employment discrimination law protects gay and transgender employees. Amy Howe analyzes the opinion for this blog, in a post that first appeared at Howe on the Court. At Reuters, Lawrence Hurley reports that “[t]he landmark 6-3 ruling represented the biggest moment for LGBT rights in the United States since the Supreme Court legalized same-sex marriage nationwide in 2015.” Tucker Higgins reports for CNBC that “[w]hile workers in about half the country were protected by local laws that prohibit discrimination based on sexual orientation or gender identity, there was no federal law that explicitly barred LGBT workers from being fired on that basis.” At The Washington Free Beacon, Kevin Daley reports that “Justice Neil Gorsuch, one of President Donald Trump’s appointees, delivered the opinion.” Steven Mazie at The Economist reports that “Justice [Brett] Kavanaugh wrote a dissent admonishing the majority for legislating from the bench”; “[f]or the more vituperative Justice Samuel Alito (joined in dissent by Justice Clarence Thomas), the ‘radical’ result in Bostock is based on ‘preposterous’ reasoning.”

Jess Bravin and Brent Kendall report for The Wall Street Journal (subscription required) that “[t]he case extends a quarter-century of momentous advances for gay-rights advocates at the Supreme Court, even as the court has grown more conservative with the 2018 retirement of Justice Anthony Kennedy, author of the court’s previous LGBT rights rulings.” For USA Today, Richard Wolf reports that “for now – thanks in no small part to Gorsuch and Kavanaugh – the court may be conservative, but it is far from united.” At NPR, Nina Totenberg reports that “[a]t the end of his 33-page opinion, … Gorsuch invoked several potential caveats[:] He noted, for instance, that some employers might have valid religious objections to hiring gay or trans workers,” and he “point[ed] to the 1993 Religious Freedom Restoration Act as a ‘super statute’ that may offer a potential lifeline to employers who object, on religious grounds, to hiring gay and trans individuals.” Additional coverage comes from Ronn Blitzer and Bill Mears at Fox News, Howard Fischer for Capitol News Services (via Tucson.com), and Mark Walsh at Education Week, who reports that “debates over restrooms, locker rooms, and athletics had marked the oral arguments in the Title VII cases, and Justice Alito spent several sections of his lengthy dissent on those topics.” [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.]

Lisa Keen at Keen News Service calls this “perhaps the most stunning U.S. Supreme Court victory in history for LGBT people.” At the Constitutional Law Prof Blog, Ruthan Robson notes that “all of the opinions raise the First Amendment free exercise of religion specter.” At Stanford Law School’s Legal Aggregate blog, Jane Schacter finds it “notable … that the opinion reaches a historic progressive result through methodologies typically associated with more conservative approaches to the law.” In an op-ed for The Hill, John Bursch argues that “[i]t cannot be that Title VII meant one thing for over 50 years and now means something completely different.” The editorial board of The Wall Street Journal writes that “[i]f Justice Gorsuch can use textualism to rewrite a statute to comport with changing public mores, then it is meaningless[:] Textualism becomes merely one more tool of those who believe in a ‘living Constitution’ that means whatever any Justice says it means.” Damon Root writes at Reason that “[i]t might come as a surprise to find Gorsuch and [Justice Antonin] Scalia playing such big roles in a Supreme Court decision that is being celebrated as a landmark liberal victory[, b]ut that misses the point of textualism.” Steve Sanders observes at Medium that “the majority opinion is not a manifesto for LGBT rights or social equality”; “[i]nstead, the opinion is an exercise in pure, academic textual analysis.” At PrawfsBlawg, Gerard Magliocca suggests that “the stakes for the ERA are now higher[:] If Congress ever decides to repeal the expired ratification deadline and declare the ERA part of the Constitution, that amendment could well read as prohibiting discrimination on the basis of sexual orientation or transgender status.” Additional commentary comes from Hera Arsen at Ogletree Deakins, William Gould in a Q&A at Legal Aggregate, Howard Wasserman at PrawfsBlawg, Ryan Everson in an op-ed for The Washington Examiner and Shirley Lin at the Human Rights at Home blog.

The court also held 7-2 in U.S. Forest Service v. Cowpasture River Preservation Association that the Forest Service had the authority to grant a right of way for a natural gas pipeline through lands traversed by the Appalachian Trail. Robert Barnes reports for The Washington Post (subscription required) that the decision “removed a major obstacle to the construction of the Atlantic Coast Pipeline, a long-delayed and multibillion-dollar project meant to carry natural gas through some of the most mountainous scenery in central Virginia.” Mariam Morshedi analyzes the decision at Subscript Law. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the respondents in this case.]

In a summary decision in Andrus v. Texas, the justices held 6-3 that Texas death-row inmate Terence Andrus had established that his defense counsel’s performance was deficient, and they sent the case back for the lower court to determine whether the counsel’s inadequacy prejudiced Andrus. Amy Howe analyzes the opinion in Andrus for this blog, in a post that first appeared at Howe on the Court. At Crime & Consequences, Kent Scheidegger complains that “[t]he per curiam opinion reads like a typical capital defense brief.”

Yesterday the court issued orders from last week’s conference. The justices added two cases to their merits docket: Albence v. Chavez, which asks which provision of immigration law governs the detention of a noncitizen whose removal order has been reinstated and who is seeking withholding of removal, and Henry Schein v. Archer and White Sales Inc., in which the court will decide whether a provision in an arbitration agreement that carves out some claims trumps a clear delegation to an arbitrator of questions of arbitrability. The court also requested the views of the solicitor general in Texas v. California, in which Texas is asking the justices to decide whether California’s ban on government-funded travel to states that it regards as having laws or policies that discriminate against gays, lesbians and transgender people violates the Constitution. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. For Capitol Media Services (via Tucson.com), Howard Fischer reports that the court also “quashed a last-ditch effort by the Arizona Libertarian Party to void a state statute that as designed – and succeeded – at keeping its candidates off the ballot.” At CPR Speaks, Russ Bleemer and Heather Cameron look at the cert grant in Henry Schein.

The justices declined to review a group of Second Amendment cases they had considered at several conferences, along with another group of cases involving the doctrine of qualified immunity, which shields officials from liability for constitutional violations that do not violate clearly established law. For this blog, and also at Howe on the Court, Amy Howe covers the cert denials in the Second Amendment cases. At Bloomberg, Greg Stohr reports that the court “turned away 10 appeals that sought to broaden constitutional firearm protections, rejecting calls for rights to own a semi-automatic assault rifle and carry a handgun in public[:] The rebuffs are a blow to the gun-rights movement, which has been trying for a decade to get the court to take up a major new Second Amendment case.” At Route Fifty, Bill Lucia reports that several of the “pending gun  cases before the court involved challenges over ‘public carry’ restrictions.”

At NPR, Nina Totenberg reports that “[t]wo Supreme Court justices have repeatedly urged the court to reexamine qualified immunity doctrine: Sonia Sotomayor, arguably the court’s most liberal justice, and Thomas, arguably its most conservative.” At Education Week’s School Law Blog, Mark Walsh reports that in one of the nine qualified immunity cases the court declined to hear, “Justice Clarence Thomas wrote a lone dissent from the denial of review, saying, ‘I continue to have strong doubts about our Section 1983 qualified immunity doctrine.’” Brent Kendall and Jess Bravin report for The Wall Street Journal (subscription required) that “[t]he court’s move will keep it on the sidelines of a brewing national debate over the leeway law enforcement enjoys to treat suspects and others without regard to their constitutional rights.” Commentary comes from Howard Wasserman at PrawfsBlawg, who wonders “if the recent events and the introduction of legislation prompted the Justices to wait.” At trialdex, Ed Hagen argues that “[t]he Court properly denied cert in these cases,” because “if § 1983/Bivens qualified immunity is a doctrine that should be revisited, that is a job for Congress, not the Supreme Court.”

Ariane de Vogue reports at CNN that the court “left in place a lower court opinion upholding one of California’s so-called sanctuary laws that limits cooperation between law enforcement and federal immigration authorities, a measure that the Trump administration says is meant to ‘undermine’ federal immigration enforcement.” Amy Howe’s coverage of the sanctuary state case for this blog is here; it first appeared at Howe on the Court. Kevin Johnson offers his take on the petition at the ImmigrationProf Blog.

Briefly:

• For The Wall Street Journal, Sadie Gurman reports that “[t]he Justice Department has set new dates to begin executing federal death row inmates while the prisoners’ appeals are pending before the U.S. Supreme Court.”
• Jordan Rubin reports at Bloomberg Law that “Justice Brett Kavanaugh’s suggestion last term that Texas could avoid religious freedom issues during executions by barring ministers of all faiths is back at the high court, due to an appeal ahead of a planned Tuesday execution.”
• At Sentencing Law and Policy, Douglas Berman laments that “the current Supreme Court has largely decided [to] become particularly quiet on sentencing matters.”
• In an op-ed at The Hill, Deborah LaFetra and Elizabeth Slattery are discouraged by the court’s decision not to review a case challenging Wisconsin’s mandatory bar membership and dues requirements, and they urge the justices to ensure in a future case “that attorneys nationwide enjoy protection against compelled subsidization of speech.”
• In an op-ed at the Chicago Daily Law Bulletin, Daniel Cotter highlights last week’s Supreme Court news.
• At the Brennan Center for Justice, Ciara Torres-Spelliscy worries that “the Supreme Court’s ruling in the Bridgegate case,” Kelly v. United States, in which the justices reversed federal fraud convictions stemming from the Bridgegate controversy in New Jersey because the scheme did not aim to obtain money or property, “will ultimately make it harder, if not impossible, to use federal fraud statutes against fraudulent officials.”

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