The first Monday of October marks the beginning of the 2019-20 Supreme Court term. Last year saw some momentous decisions and nondecisions, the former including the court’s rebuff to the Trump administration’s attempt to add a “citizenship” question to the 2020 census, the latter including the court’s refusal to adjudicate the issue of “partisan gerrymandering.”
The past few months, and this one, mark the period during which the court decides on its docket for the next nine months. The court may add cases after it goes back to work, but we now have at least some sense of the coming lineup.
On Oct. 8, the second day of the term, the subject of gender equality will occupy the justices’ attention in three cases, each dealing with employees’ claims of sex discrimination under Title VII of the Civil Rights Act of 1964, which forbids firing someone “because of sex.”
R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission deals with “transgender equality.” A Michigan funeral director informed the funeral home owner that he intended to live and work as female, and would later have sex reassignment surgery. The owner fired her, saying that continuing to employ the director in such circumstances would violate his religious beliefs. The other two cases — Altitude Express v. Zarda and Bostock v. Clayton County, Ga. — present the issue of whether Title VII protects gay people.
In the funeral home case, the Equal Employment Opportunity Commission said the words in Title VII cover a transgender person. A federal Court of Appeals agreed. The other cases involve a skydiver and a county employee, both fired on account of being gay. According to the Second Circuit, “sexual orientation discrimination is motivated, at least in part, by sex.” The Eleventh Circuit, relying on earlier cases, construed Title VII more narrowly, thereby creating a so-called “circuit split” for the Supreme Court to resolve.
What makes these cases especially notable is that they will be decided without Justice Anthony Kennedy, a staunch defender of gay rights, whose seat is now occupied by Justice Brett Kavanaugh. The Trump administration is siding with the employers in these cases, though without the support of the EEOC, which has refused to sign on to the briefs.
I will be astounded if the court rules in favor of the employees. I predict the court will rule narrowly, based on the words of the statute and not on equal-protection grounds. If I am correct, many will see the decision as a change of direction, signaling a slowdown, if not a halt, to the expansion of gay and gender rights.
Another potentially important case is New York State Rifle & Pistol Association v. City of New York, which involves a Second Amendment challenge to New York City’s ban on transporting a handgun to a home or shooting range outside city limits. In July, the city asked the court to remove the case from the docket on the grounds that state and local law had changed in favor of the gun owners, making the matter moot. The rifle association, on the other hand, wants the court to keep the case, no doubt seeing an opportunity to solidify gun owners’ Second Amendment rights.
My guess is that the case will go off the docket, allowing the court to dodge a bullet, so to speak. But if it stays, the court will face the question of whether, under the 2008 Heller decision upholding gun owners’ rights, such state and local regulation is constitutional. Justice Antonin Scalia’s Heller opinion left the subject of reasonable regulation open, and public opinion seems to have turned in the wake of so many recent mass shootings. However the court rules, the case is bound to produces extensive publicity and public outcry.
On the first day of the term, the court will hear two important criminal law cases. One deals with the insanity defense, which has been part of American law since the beginning. Under the M’Naghten Rule, dating back to an 1843 British case, “every man is presumed to be sane,” but if the accused did not understand the “nature and quality of the act” and “did not know he was doing what was wrong,” then in the eyes of the law, he was legally blameless.
Until the 1970s, every state had such an insanity rule, the exact formulation of which varied from state to state. In New Hampshire, the question for the jury is whether the crime was a “product of” or was “caused by” the defendant’s illness.
What I had not known is that five states have abolished the insanity defense. On Oct. 7, the court will hear Kahler v. Kansas, an appeal from the Supreme Court of Kansas. Kahler was convicted of killing four family members, and sentenced to death. Constitutionally speaking, the question is whether abolishing the insanity defense, as Kansas has done, violates Kahler’s rights under the Eighth (prohibiting cruel and unusual punishment) and Fourteenth (requiring due process of law) Amendments.
This case raises deep moral and philosophical questions. The petition filed with the court cites Christian, Jewish, and Islamic tradition, along with the writings of Plato, St. Augustine, Justinian and others. Some justices may say that none of that matters; the question is what was understood at the time of these amendments. But others may note that the Founding Fathers were well aware of such teachings, going back thousands of years, as well as the deep-rooted common law tradition.
I’m stumped on how this case will come out. In 2012, the court refused to hear an Idaho case raising the same issue, with three justices (Breyer, Ginsburg and Sotomayor) dissenting. It takes four votes to grant an appeal (“certiorari” or “cert”), so at least one more justice, perhaps Justice Kagan, has joined in.
The other first-day criminal case presents another tradition under challenge — the requirement of juror unanimity in criminal cases. It comes from the Louisiana Court of Appeals, which upheld that state’s 1898 Jim Crow-era constitutional amendment allowing less than a unanimous vote (nine, later changed to 10, out of 12 jurors) in noncapital cases. The offense in Ramos v. Louisiana was second-degree murder, the penalty life in prison.
Like the Kansas case, this appeal raises historical issues, beginning with the common law unanimity requirement that had existed for centuries when the Founding Fathers made the Jury Trial Clause part of the Sixth Amendment. It also raises practical issues of fairness: If the Sixth Amendment requires unanimity in federal court, how can it not do so in state court? And, it raises a fundamental issue of how the judicial system can best afford justice to an accused, perhaps best understood if the justices watch “12 Angry Men,” that great 1957 movie where, as in the Ramos case, the accused was also a minority.