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Trends in the Law: On the Horizon in the High Court

TRENDS IN THE LAW SERIES: Cases on the Horizon in the High Court

The 2018-2019 term of the Supreme Court of the United States has already had some noteworthy cases—Gamble v. U.S. is one such case—and there are several more potentially precedent-setting cases to be argued in the upcoming months. A preview of some of these important cases is below.

Department of Commerce v. USDC: Oral argument is scheduled for February 19, 2019: The central question before the Court is whether Commerce Secretary Wilbur Ross can be ordered to answer questions under oath challenging his decision to add a citizenship question to the 2020 census. Ross has said that he added the citizenship question to help the Department of Justice better enforce the Voting Rights Act. The challengers to the question being added are 18 blue-leaning states, led by New York, who argue that the question will scare away immigrants from responding to the census, thereby denying federal funding and fair representation in Congress to states with large immigrant populations. Thus, there is much more at stake than the testimony of a cabinet official.

American Legion v. American Humanist Association/Maryland National Capital Park and

Planning Commission: Oral argument is scheduled for February 27, 2019: This is an Establishment Clause case, so the proper analysis is whether the government action complained of (1) constitutes an endorsement of religion; (2) is an excessive entanglement by government with religion; or (3) is unduly coercive to non-believers. In this case, the Fourth Circuit ruled that the 93-year-old war memorial in Bladensburg, Maryland, that includes a 40 foot cross violates the Establishment Clause; the court held that the size and prominence of the cross conveyed a government endorsement of Christianity. A dissenting opinion noted that displays on government property may incorporate religious elements without violating the Establishment Clause if they serve a legitimate secular purpose, and that history and context of the display must be considered.

Altitude Express Inc. v. Zarda: The issue in this case is one that has been percolating for years: Does Title VII’s prohibition on sex discrimination extend to include discrimination based on sexual orientation? During the Obama Administration, the Equal Employment Opportunity Commission interpreted Title VII to include such discrimination, but Congress never officially amended the statute to include sexual orientation as a protected class. Circuit courts ruled against extending Title VII coverage to sexual orientation.

Until 2017; in Hively v. Ivy Tech Community College, the Seventh Circuit ruled that Title VII includes sexual orientation. Following this, the Second Circuit agreed in Zarda. However, the Eleventh Circuit declined to extend Title VII protection to sexual orientation in Evans v. Georgia Regional Hospital (2017).

Zarda is now pending before the Supreme Court, and the Department of Justice has filed a brief stating that it does not support an interpretation of Title VII which makes sexual orientation part of a protected class.

As mentioned above, a noteworthy case already argued but not yet decided is Gamble v. U.S. Argued December 6, 2018, Gamble considers the controversial “separate sovereign” or “dual sovereign” exception to the protection against prosecution for the same offense found in the Double Jeopardy Clause. In 2015, Terrence Gamble was pulled over in Alabama for a broken tail light. When marijuana and a firearm were found in the backseat of his car, he was arrested and charged with possession of a firearm as a felon. After he was convicted in Alabama and served his sentence, Gamble was charged by federal officials for the same offense but under federal law. He is in prison, scheduled for release in 2020.

Gamble argues that the separate sovereign exception to double jeopardy should be overruled, and many conservative and liberal groups agree. (Amicus curiae briefs were filed by the conservative CATO Institute, the liberal ACLU, and the ACLU of Alabama.) The main argument is that the exception was carved out when the federal government was not as expansive as it is today, and its functions and laws did not overlap as much with state government and laws. The doctrine—and therefore the case—has political significance today due to its potential to augment presidential pardon power: without the separate sovereign exception, a pardon of a federal crime also effectively pardons the state crime for that offense, so a presidential pardon is more powerful.


We look forward to these cases being heard and decided by SCOTUS. As always, if you have any questions, please contact Dave Thomas at The Thomas Law Firm for a free evaluation of your legal rights.

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