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Supreme Court Preview: Something for Everyone


Civil Rights. Separation of Church and State. Abortion. Executive Power. Immigration. An explosive roster to say the least. These topics will make the current docket of the Supreme Court of the United States one of the most consequential in recent memory. Many experts who study the Supreme Court try to predict the effect its new conservative majority will have on these hot-button issues. But Chief Justice John Roberts might become the new “swing” vote (replacing Justice Kennedy, who recently retired); this was the role he played with his vote that aligned with the four liberal Justices on the citizenship question in the census case last term. Justice Neil Gorsuch exhibits a libertarian streak that at times places his vote at odds with his fellow conservative Justices. Bottom line: this Supreme Court is as unpredictable as Courts have ever been, and that factor combined with the high-profile cases will make this term one for the law—and history—books.

Ultimately, the cases on SCOTUS’ docket this term exemplify the culture wars playing out in our society. Below is a preview of the most highly anticipated cases:


Oral arguments in this LGBT Civil Rights case were heard on October 8th. The case is actually three consolidated cases (Zarda, Bostock and Harris Funeral Homes) in which two gay men and a transgender woman were fired on the basis of their sexual orientation and gender identity. The basis of their lawsuit turns on the meaning of “sex discrimination” in Title VII of the Civil Rights Act of 1964; specifically, does that term prohibit discrimination based on sexual orientation and gender identity? The issue will not necessarily be determined along traditional liberal versus conservative lines; it may instead be decided by legislative intent versus the plain meaning of the statute (textualist). The employers argued that the legislature never intended “sex discrimination” to apply to sexual orientation and gender identity when it passed the law in 1964; the plaintiffs argued that it is impossible to separate “sex discrimination" from sexual orientation and gender identity and therefore the law must apply to both.

SCOTUS’ decision in this case has huge ramifications for the LGBT community. Twenty-eight states have little to no protection against discrimination based on sexual orientation or gender identity, so protection at the federal level—based on Title VII of the 1964 Civil Rights Act—would be a giant step forward. Two hundred and six businesses—including Apple and Amazon—filed amicus briefs in support of the plaintiffs, noting that together they represent 7 million employees and 5 trillion in revenue.

Oral arguments will be heard in November in Comcast Corp. v. National Assoc. of African American-Owned Media. This case focuses on a Reconstruction-era statute that provides that everyone shall enjoy the “same contractual rights as are enjoyed by white citizens.” The plaintiff is a black-owned media company that claims that Comcast refused to carry its stations for racist reasons. SCOTUS will decide whether mixed-motive suits are available under this post-Civil War discrimination ban. Mixed-motive lawsuits arise when there is a mixture of permissible and impermissible factors. For example, when an employee is fired by two managers, one of whom is motivated by the employee’s race, and the other by the employee’s poor job performance. The former is not a permissible reason for firing while the latter is, and therefore a mixed-motive discrimination lawsuit can proceed where authorized. The question is whether mixed-motive lawsuits are allowed in areas where they are not explicitly authorized (the statute involved in the Comcast case does not do so).


SCOTUS has agreed to hear the appeal of a Louisiana law that requires doctors there who perform abortions to have admitting privileges at nearby hospitals in order to ensure the safety of their patients (in cases of emergencies). Opponents of the law claim that the requirement presents an undue burden which is barred by the 1992 Supreme Court decision Planned Parenthood v. Casey. The case this term will be watched as a bellwether case to determine if the new conservative majority on the Court is “chipping away” at reproductive rights, as many progressives fear.


Many of these so-called separation cases focus on the state constitutional bars to direct or indirect government aid to religious schools. Often, the challenge brought is that the prohibition to such aid is tantamount to discrimination under the federal constitution. One such case is an appeal from a decision by the Montana Supreme Court. Three Montana mothers sought scholarships from the state scholarship program to send their children to a Christian school. They were denied, and sued. The Montana Supreme Court rejected the lawsuit and then shut down the entire scholarship program. The question now before SCOTUS is whether Montana can exclude religious schools from the state scholarship program. It is likely that SCOTUS will build on its 2017 decision in Trinity Lutheran Church v. Comer, in which it held that Missouri could not exclude religious institutions from a state program to make playgrounds safer, despite the state constitution’s strict separation of church and state.


The question that will be presented to SCOTUS either by way of executive privilege being asserted with respect to subpoenas for the testimony of witnesses and/or production of documents, or charges of obstruction of Congress when both are denied, is ultimately: is a president immune from not only prosecution but from investigation while in office? The Office of Legal Counsel memorandum takes the position that a sitting president cannot be prosecuted. But immunity from investigation and the right to instruct witnesses not to testify and not to provide documents is fundamentally different. Known colloquially as “the Nixon defense,” this blanket immunity was rejected by the Supreme Court in 1972 when the Court ordered President Nixon to hand over the infamous tapes in the Watergate investigation.

The bigger issue is one of the balancing of powers between the three branches of government. The co-equal branches of government were designed to provide checks and balances on each other. If one branch—any branch—has blanket immunity, then the other two branches cannot perform their check-and-balance function properly, and therefore the branch with the blanket immunity becomes the most powerful.


Three cases will be heard by SCOTUS on November 12, and all concern the fate of the DACA program: Deferred Action for Childhood Arrivals. Although the human stakes of these cases are enormous (as of last year, it is estimated that app. 700,000 undocumented immigrants benefit from this program, which allows many undocumented immigrants who came to the U.S. as children to remain in the U.S. and to work here), the legal issue is fairly simple. Because DACA was created by executive order, it can be rescinded by the same means. Lower courts have, in fact, stated that the executive branch has the power to end DACA. However, the Department of Homeland Security’s 2017 memo announcing its intention to wind down DACA claimed that it is doing so because DACA is illegal. By offering a legal reason rather than a policy-based rationale, the decision became ripe for judicial review.

Ostensibly, there is a question of whether the correct paperwork was filed. But it hardly seems likely that the Supreme Court agreed to hear the case to decide that issue. The heart of the case is whether the DACA program is legal and whether programs like it can exist now or in the future.


If you or someone you know has suffered discrimination, contact Dave Thomas at The Thomas Law Firm for a free evaluation of your legal rights.

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