What to Expect From the Coming Supreme Court Term (ep. 65)

September 26, 2019
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Another Supreme Court session is upon us, with the court set to reconvene in October following its summer recess. On the docket for the new session are cases that have important implications for LGBTQ rights, criminal justice, immigration, and more. David Cole, the legal director of the ACLU and an experienced Supreme Court litigator, joins At Liberty to preview the coming term. 

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[00:00:05] From ACLU, this is At Liberty. I’m Emerson Sykes, a staff attorney here at the ACLU and your host.

Another Supreme Court session is upon us, with the court set to reconvene following its summer recess on October 7th. On the docket for the new session are cases that have important implications for LGBTQ rights, criminal justice, and immigration, among other issues. And the ACLU is set to argue one of the biggest cases of the term.

With us today to preview the coming year at the Supreme Court is David Cole, the legal director of the ACLU and an experienced Supreme Court litigator. Thanks very much for joining us, David. Welcome back to the podcast.

[00:00:48] Great to be here.

David, let's start with what many observers think is the big blockbuster of the term: Harris Funeral Homes vs. Aimee Stephens, deciding whether LGBTQ employees are protected under federal sex discrimination laws. It's an ACLU case and it'll be one of the first cases argued. It has huge implications, not only for LGBTQ people, but for all of us. We’ll devote next week's entire episode to this case. But can you start off by telling us briefly what the case is about?

[00:01:14] Sure. There's actually three cases that uh the court is going to hear all together on the same day, on October 8th. Two of them involve whether discriminating against an employee because he or she is gay or lesbian is a form of sex discrimination under Title VII. And the Stevens case is about whether discriminating against an individual because she is transgender is sex discrimination under Title VII. What Title VII prohibits is discrimination in employment because of race, sex, religion, and national origin. It was passed in 1964 and obviously in 1964, Congress members were not thinking about how it might apply to LGBTQ people. But the argument that we have made and that a number of lower courts have accepted is that discrimination on the basis of sexual orientation and discrimination on the basis of transgender status are essentially subsets of sex discrimination. They treat people differently because of their sex. [00:02:24]

[00:02:25] And how do you expect this to play out at the court?

So I think it's tough to predict this one because we have won this argument before some very conservative judges in the courts of appeals. So Judge Easterbrook of the 7th Circuit, Judge Pryor of the 11th Circuit, Judges Cabranes and Jacobs of the 2nd Circuit - all, you know, generally very conservative judges have said, “Of course this is sex discrimination.” We've also lost the argument before some fairly liberal judges, including Judge Gerry Lynch of the 2nd Circuit, who wrote a dissent saying, “No, of course Congress wasn't intending to protect LGBTQ people when it prohibited discrimination based on sex and therefore we, the courts, should not essentially rewrite the statute to reach that behavior.”

[00:03:15] But that view that Judge Lynch took is a view that says, “We should read the statute not by its literal terms, but rather but why what we think Congress intended when they passed the statute,” and that's not the way that the court interprets statutes these days and particularly it's not the way conservative judges interpret statutes.

They don't ask what was Congress's intent because they think that's too, you know, amorphous, they ask, “Do the literal terms of the statute cover the conduct?” And, you know, take the sexual orientation case: Don Zarda was a skydiving instructor fired when he informed a client that he was gay. Why was he fired? He was fired because he is a man who is sexually attracted to men. If he had been a woman, he would not be fired for being sexually attracted to men. Right? So he is being treated differently because of his sex. The same thing with - even if you understand sex to be, you know, limited to what the other side calls “biological sex,” what we call “sex assigned at birth.”

Same thing is true for transgender employees. Aimee Stephens, our client, was a funeral director at the Harris Funeral Homes for six years. Stellar employee. Then she informs her employer that she is transgender and that she's going to start living as a woman, she's going to use the name Aimee, and she's going to appear at work as a woman, and the and the employer fires her for intending to come to work presenting as a woman. Now if she had been assigned female sex at birth, she wouldn't be fired for appearing as a woman. She was fired for appearing as a woman because of her sex, because she was assigned the male sex at birth.

[00:05:04] Well the arguments are convincing to me. I guess the question is, are they going to be convincing to Justice Roberts? I mean, we've we've come to understand that Roberts is now the center of the court and in some ways the swing vote, as hard as it may seem to believe that he's now the center. In this case, and maybe also looking forward to the term, what are the justices that you're particularly watching?

[00:05:25] So I think you know I think you have to watch all of them. But I think you know in addition to Chief Justice Roberts, who you know as we know sided with the liberals on the court and ruled for us in the census challenge last term, in addition to Chief Justice Roberts, I think you have to you know keep your eye on Justice Kavanaugh and Justice Gorsuch. They're both new to the court. It's not clear exactly where they're going to fall. You know, for example, last term there were 16 cases that the court decided by a 5-4 vote. Of those 16, eight of them were decided with the five Republican conservatives on one side and the four liberal Democrats on the other - eight.

But the other eight were decided with the four liberal Democrats on one side, joined by one of the conservatives who parted company from his four conservative colleagues to give the liberals a win. And so it was essentially a tie and every one of the justices - every one of the conservative justices - sided with the liberals and broke with his conservative counterparts at least once in those eight cases. And one justice parted company four times, so guess who that one was the fourth - the one of the conservatives who sided with the liberals four times and parted company from his uh four conservative colleagues.

[00:06:51] Well I’m I'm fearing this law professor question is gonna lead me astray. But the easy answer is Chief Justice Roberts. But I’m guessing that’s not the correct answer.

[00:07:00] It's not. Justice Gorsuch. Each - Roberts, Thomas, Kavanaugh, and Alito all did it once. Gorsuch - four times. So you can't write these folks off and you know I think they have a real incentive, particularly now, to rise above partisan division and to sort of show that the court is not just a political institution. And you know I think you saw that last term in the last day, when they decide the census case you know in our favor, and in a sense against what the position that the Trump administration and the Republicans were taking, then they decided the partisan gerrymandering cases on the side of the Republicans and the Trump administration, sort of splitting the baby in the two biggest cases of the term. Chief Justice Roberts was the deciding vote in both both cases.

But you also saw them you know strange bedfellows on a lot of other cases -- so a case we were involved in involving an Establishment Clause challenge to the to a 40-foot Latin cross that was a World War I memorial in Maryland. The court rejected the challenge, upheld the monument -- it doesn't violate the Establishment Clause -- but they did it on narrow, historical grounds. “This has been around for a very long time. It serves the purpose of memorializing World War I.” And the vote was seven to two, with Justices Breyer and Kagan joining the five conservatives. And on the other side you had Justice Kavanaugh writing one of the most important -- probably the most important -- race case of the term, a case involving racial bias in the selection of juries.

[00:08:38] Well I appreciate your sort of hopeful spin and the illuminating breakdown of the numbers and of the cases. I think one of the counter arguments of among the more pessimistic folks is that among the eight cases that were decided 5-4 with the conservatives all together are some of the biggest and most important cases. And so I wonder, is there any trends in terms of the topic or the the issue at play? One one thinks about you know the gerrymandering and census case could be seen as as a split. And with all due respect and congratulations to Dale Ho and the team at the ACLU, I think a lot of commentators would argue that the gerrymandering loss was worse than the census win.

[00:9:22] So I'd say if there's a trend, it's that criminal defendants tend to do better with the conservatives than you might expect. Gorsuch, in particular, has ruled in a number of cases in favor of criminal defendants, joining the more liberal justices but …

With a libertarian streak a bit, right?

DAVID: Well, or a textualist streak, a view that statutes need to be very clear and can't be open-ended and vague. That’s that's a strong view that he holds and has struck down a number of statutes because they're just not sufficiently clear in what they prohibit and he doesn't think people should face criminal sanctions for that. You know I would say in the census and the gerrymandering, yeah in some sense the gerrymandering case was a more important case, but it wasn't actually a big surprise. You know the court had never in its history recognized a gerrymander as unconstitutional for being too partisan, and it had always sort of left the door open a crack in theory by saying, “Well, there might be a partisan gerrymander but we don't see it here, we don't see it here, we don't see here.” In some sense what the what the court did was it closed a door that had never actually been open to any successful partisan gerrymandering challenge at the Supreme Court level. I'm not trying to minimize it, but I do think it's important to recognize that that was, in some sense, not a not a surprise.

[00:10:39] It makes sense. I mean maybe looking forward to some of the other cases that are on the court's docket, there are a number of interesting cases coming forward, many of which the ACLU has written amicus briefs about. I mean we have the big case that we're arguing, but we also have, what, 10 or 12 amicus briefs that we're also submitting. Can we start with some of the criminal justice cases that are before the court? You mentioned the fact that Justice Gorsuch and some of the other conservatives tend to be open to some of the more quote-unquote liberal arguments when it comes to criminal defendants, and there are some of those types of cases before the court this term.

[00:11:13] Yeah, so you know one involves whether the requirement that juries vote unanimously to convict in a criminal case, which is a federal constitutional requirement -- whether that applies to the states. And many years ago, it was held not to apply to the states. There are only two states in the union that that actually allow for non-unanimous juries or allowed for non-unanimous juries, Louisiana and Oregon. And the court has taken up the case from Louisiana to decide whether in fact the requirement of unanimity is constitutional required. I suspect that they will say that it does apply to the states.

Louisiana - we filed a brief in that case demonstrating that Louisiana adopted the non-unanimous jury requirement in the Reconstruction era, when they when they were forced to allow Blacks to serve on juries with whites. Then they said, “Well, if we're going to have to have Blacks on juries, let's not require unanimity. That way generally African-Americans will be a small percentage of the jury and we can get convictions uh uh even if these new jurors don't.” I mean, it was that explicit. So it's high time that it that it be reversed. I think it probably will be reversed.

[00:12:25] Well it's good to have some encouraging things to look forward to. What about in terms of church and state? You mentioned the Latin cross from the last term and there are a couple of new church and state cases before the court this term. How do you see those ones playing out?

[00:12:38] You know, I would say on church and state is one area where I expect over the course of the next several years, maybe decade, the court will change the law governing separation of church and state in a way that is more accepting of public support of religion and does not require states to be so clearly distinct and separate from uh religion.

So the case that they took this term is an example. It's a case out of Montana -- Espinoza. It involved a situation where the state created basically a fund for scholarships to private schools. You could donate to that fund and for every dollar you donated to that fund you got a dollar in tax credit on your state tax return.

So essentially the government was funding it, but it was through individual choice. And then individuals could apply for those scholarships. Parents could apply for those scholarships and they could use them in any private school. The vast majority of them were used at religious schools. It was challenged. But the court has said, the Supreme Court has said, that's constitutional -- it's generally constitutional -- as long as the state sets up something that is neutral from the government's standpoint and it's the choices of parents rather than the choices of the state to pay for a religious uh uh education, it doesn't violate the Establishment Clause.

[00:14:05] But in Montana, they have a “no-aid” to religion provision in their state constitution that goes beyond what the federal Establishment Clause does, and states are permitted to go beyond. Many states in many areas go beyond what the federal Constitution requires. So the Montana Supreme Court said, “This is unconstitutional under our rule which is more strict than the federal rule.” And Montana then in response ended the program across the board. So it doesn't support secular schools and doesn't support religious schools, it just doesn't exist.

And that was challenged, and the argument in the court is quite remarkable. It’s not just that it's permissible for a state to set up this kind of -- but it's required for a state to support religious education along with private secular education through such a form. That's a very disturbing case. And you know I think we're going to see a lot of disturbing decisions because there's that there are five justices. They are the five conservatives who have a very strong view that the court’s doctrine has been too anti-religion.

[00:15:12] Well the religious cases that have come before the court recently, some of the biggest ones have fallen into a few categories. You mentioned religious symbols, with the Latin cross. We just talked about funding and government programs that might help support religious education or other types of religious programming. And then I think the other theme within religious cases that we've seen is the right to discriminate. And there is a right to discriminate case related to foster care coming before the court.

[00:15:39] Well it's not -- the court hasn't granted it. So there's a case we are involved with out of Philadelphia, where Catholic Social Services had been working under a government contract to certify families for foster care. You know the city contracts with lots of agencies to do these certifications. These are kids who the state has taken away from their parents because of concerns about abuse and neglect and they're now under the state's obligation and responsibility and they use a contract with agencies to certify families who are will be good foster care placement families. And Catholic Social Services said, “We will not certify any gay or lesbian family because we're opposed to same sex marriage.”

And the city said, “Well you know then we can't contract with you because you are performing a public function, helping us figure out where we put these kids who are in our responsibility, and you are discriminating in doing that. And we have an ordinance that prohibits discrimination on the basis of sexual orientation in government in government functions.” And the Catholic Social Services sued to say they have a right to get a government contract to perform a government service but to violate the terms of the government contract that define the government service, because it would violate their free exercise rights.

[00:16:59] It's a remarkable assertion. They're not being compelled to do anything. This is a contract program that they can apply for, they don't have to participate in it. There is all sorts of private adoption work that they can do and they lost, they lost in the district court. They lost in the Court of Appeals unanimously. They've petitioned for a review. We're opposing. And you know I'm hopeful that the court will uh will turn it down.

[00:17:21] And the last sort of bucket of cases that I saw were around immigration. Do you want to just say a few words on some of the immigration questions that are going to be or possibly be before the court, in terms of you know DACA and other programs under review?

[00:17:34] Yeah, immigration is likely to be a big issue in the court this term. Before the court is the legality of President Trump's revocation of DACA, the program that President Obama put in place that gave deferred action status and the right to work to 800,000 young people who came here through no illegal conduct of their own but are here. And uh President Obama said in the exercise of his discretion about who to prioritize for deportation, [00:18:08] “I'm going to deprioritize people who are young, who did not come here through any illegal conduct of their own, who have not engaged in any illegal conduct. And I'm going to say they can stay and they can get work status.”

[00:18:20] Trump ended that program, said that the program was illegal to begin with and that's why he was ending it, and three district courts have said that that was wrong, that the program was lawful to begin with and therefore President Trump ending it on the ground that it was illegal is arbitrary and capricious. That case affects the lives of 800,000 people in this country: a momentous decision.

There are other immigration cases. There's a case where the government is seeking review and we are opposing review, but it's quite possible the court will take it -- concerns the right under the habeas corpus protection in the Constitution, the right to challenge a detention in court. The question is how that applies to the removal of foreign nationals in these summary proceedings that are called “expedited removal” that Congress has authorized and the Trump administration has expanded greatly and that under the statute provide no judicial review, no meaningful judicial review at all. And we've prevailed in a court of appeals on a ruling says the habeas corpus protection in the Constitution requires that foreign nationals who are facing detention and removal have a right to go to federal court to challenge the legality of their detention.

[00:19:42] And then you know we have two challenges to the asylum bans that Trump has put in place. One was a ban on anyone applying for asylum who didn't come in through a port of entry but instead came across the border illegally. He said you can't you can't apply for asylum if you come here illegally, even though the statute says you can apply for asylum whether you came here legally or illegally. We got an injunction against that. It's going to be argued in the Ninth Circuit Court of Appeals, October 1st. If we prevail in the Ninth Circuit, very likely that will go up to the Supreme Court.

And then the second asylum ban, the one most recent one, where he said if you come through another country on your way to the United States and you don't first apply and get denied asylum in that country, you can't apply for asylum here. We argue that's also contrary to the statute. We won in the district court, it's on appeal. That also will be argued very soon and may ultimately reach the Supreme Court this term.

[00:20:42] And then the border wall. You know we challenged the border wall as being beyond President Trump's authority, because he asked Congress for money for a border wall. They said no. And then he went ahead and started spending money to build the border wall. We challenged that in court, we got an injunction. It's on appeal uh and will be argued November 12th. So all of those cases could, if we win in the courts of appeals, very likely to be reviewed by the Supreme Court. So it could be a huge immigration term.

[00:21:09] And how do you see that playing out at the Supreme Court? We've seen last term some extraordinary deference to the executive, to the president, especially when it comes to national security or immigration. And it's really only been when the government has bald faced lied to the court and the court cannot ignore -- in the case of the census case -- the clear untruth of what the government has been telling them that they've been willing to push back a bit. Do you see any of the five conservative justices having the inclination or the bravery to rule against the president in any of these cases?

[00:21:45] Yeah, Chief Justice Roberts, for example, on the first asylum ban, the one that barred people from applying for asylum if they don't enter at a checkpoint and they come across the border illegally, the Trump administration took that case took that injunction all the way to the Supreme Court asking for a stay, sort of a temporary stay of the injunction while the case is proceeding in the courts.

[00:22:08] And the Supreme Court denied the stay, left the injunction in place, with Chief Justice Roberts voting with the four liberals against President Trump. So there is another example. You know, and I think the right to judicial review over deportation decisions, that's about the courts. You know one of the central functions of a court in our constitutional system is that if you are detained, you have a right to go to a court and demand that the court you know assess whether you are legally detained. That's that's about as central to what courts do as anything else. And so the notion that Congress can just get rid of that across the board for a whole slew of foreign nationals, I think the court you know may be skeptical of that.

[00:22:52] The border wall and the second asylum ban -- the Trump administration also sought stays pending appeal from the Supreme Court of those two injunctions and got them. And these things are not formally binding on the court going forward, but they're indications that at least five justices thought the Trump administration was right on those. So, we'll see. I don't think you can rule any of them out.

[00:23:16] One thing that we haven't talked about yet is reproductive rights. There aren't, if I'm not mistaken, any cases on the docket as of now, but we expect that to change. Is that correct?

[00:23:27] Yeah I think so, there is there's one case that's almost certain to be heard by the court this term and that's a case from Louisiana, challenging a law that requires doctors who perform abortions to have admitting privileges at a hospital near their clinic. The same requirement was in Texas was invalidated by the Supreme Court about three years ago in a case called Whole Woman's Health, with Chief Justice Roberts in dissent, Justice Kennedy joining the four liberals to uh declare the that that requirement unconstitutional, because doctors don't need admitting privileges at hospitals to perform abortions because 99.9 percent of abortions never lead to someone going to a hospital. It’s a very safe procedure and you don't need admitting privileges to get into a hospital in any event.

[00:24:17] So the Fifth Circuit in Louisiana, however, ruled that the doctor admitting privilege requirement in Louisiana was constitutional, parted company with the Supreme Court's decision in Whole Woman's Health. And in that case the challengers -- the clinics and the doctors -- took that up to the Supreme Court to seek a stay of the law pending Supreme Court review and they got a stay of the law, pending Supreme Court review, 5-4, with again Chief Justice Roberts joining the four liberals. So even though he voted against a decision three years ago that said this is unconstitutional, he voted with the liberals in enforcing that going forward. So that case is on the docket. They will now presumably take that up because that was just over whether there should be a stay pending appeal. I think they'll probably, they almost certainly will take it -- probably reverse. So that one very likely to be up.

[00:25:15] And then there's a couple cases that we have involving ultrasound requirements. One we won in the lower courts. The other one we lost in the lower courts, and it's possible that one of those could also go up. The one that we lost and that we're seeking Supreme Court review on is really just a remarkable case out of Kentucky, where the Kentucky law requires -- purportedly as a matter of informed consent -- they require a doctor to, while provide while performing an ultrasound -- which doctors do pre-abortion to determine you know where the fetus is and any problems that might exist -- the doctor is required to show the woman the ultrasound image, describe in detail all external members and internal organs that he sees there, to play the heartbeat for the woman, even if she has made clear she does not want to see this, she has made a decision informed by the risks, etc, that she wants to go ahead with an abortion and she doesn't want to see uh the ultrasound, she doesn't want to hear the heartbeat.

[00:26:21] The law requires the doctor to tell her that, while she is strapped in stirrups, half naked, with the ultrasound probe up her vagina. And it's just a grotesque requirement. It doesn't serve any informed consent goal and we've challenged that and we've been successful in some courts of appeals, but we lost, in this case in the 6th Circuit, and we’re asking the Supreme Court to review.

[00:26:46] Well there's no shortage of fascinating and important cases this term and as I mentioned, we'll have some colleagues on to talk about some of the bigger ACLU cases, including the Aimee Stephens case. And we'll also have an episode on a really interesting case in Puerto Rico, where we’ve written an amicus brief. And then, as these other cases may be added to the docket, we'll also you know circle back to others who are working on reproductive freedom at the ACLU.

[00:27:10] But we can't finish a Supreme Court preview without at least mentioning Justice Kavanaugh and all of the newest revelations. He's back in the news on the eve of the new term. And I'm wondering how, if at all, the new revelations, the reignition of the political debate around Justice Kavanaugh, affects those who are going to argue before the court.

[00:27:32] So I think when you're preparing to argue before the Supreme Court you try to figure out how, within the very short space of 30 minutes, with eight people asking you questions -- ‘cause Justice Thomas doesn't ask questions but all the others do -- how to make the most persuasive case you can. And you know, almost regardless of who's up there -- unless you sort of know that you can predict in advance who the swing justices are going to be, but it’s it's not that easy to predict for the reasons we talked about before, so I don't think it necessarily affects how advocates prepare for the court.

[00:28:07] I you know I do think that the court is concerned -- and I think probably every member of the court but certainly the vast majority of them -- are concerned that the court not be perceived as stuck in the same partisan divide that the rest of the country is in. Congress: totally divided. The state legislatures: totally divided. The media: totally divided. Right? The country seems to be totally divided. You know if the court is seen as a Republican -- five Republican, four Democrat court, that is contrary to the notion that they govern by law and not by politics. Congress is supposed to govern by politics. The court is supposed to govern by law.

[00:28:48] And so I think the fact that there was so much controversy around Kavanaugh and it was so partisan, on both sides, and that he and his defense became partisan himself, raised concerns for the court, including Justice Kavanaugh himself, about the perception that the court is going to be just as partisan as all the other institutions of government. And I think that actually is a real threat to the court's legitimacy and the very fact that they have to take that seriously is a good thing. It's a constraint. If you think about it, if the court acted entirely in political ways like Congress does and there were 16 you know 5-4 decisions, a Republican Democrat in Congress they would all come out Republican. Right?

But, here, last term they came out eight to eight. So this notion that the court should not be driven solely by politics -- of course people come in with particular worldviews and ways of thinking about the law that may identify them with one side of the aisle rather than the other, but it's really important that they be seen as above partisan divide and I think that's a good, useful, and important constraining constraint in this era.

[00:29:58] Well we'll be watching closely and we look forward to having you back for another Supreme Court recap after the term is over. So thank you very much, David, and thanks for all your great work at the Supreme Court.

Always great to be with you. [00:33:08]

[00:30:12] Thanks very much for listening. If you enjoyed this episode please be sure to subscribe to At Liberty wherever you get your podcasts and rate and review the show. We really appreciate the feedback. ‘Till next week, peace.

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