Legal Experts Discuss the Upcoming Supreme Court Term

A panel hosted by GW Law said abortion, immigration, gun laws and LGBTQ rights will be on the court’s docket.

Supreme Court
From left to right: Mark Joseph Stern, Jonathan Turley, Sherrilyn Ifill and Kannon K. Shanmugam spoke on a GW Law panel about major issues and cases that will come before the Supreme Court in its upcoming term. (William Atkins/GW Today)
September 16, 2019

By Tatyana Hopkins

A panel of legal experts gathered Thursday at a GW Law briefing to preview major cases and issues at hand in the Supreme Court’s upcoming term, which will begin Oct. 7.

Mark Joseph Stern, Supreme Court correspondent at Slate magazine, moderated the discussion with legal experts including Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund; Kannon K. Shanmugam, managing partner of Paul Weiss’ Washington, D.C., office and chair of its Supreme Court and Appellate Practice group; and

Jonathan Turley, GW Law’s J.B. and Maurice Shapiro Professor of Public Interest Law.

Below are the issues and cases the panel discussed:

McAleenan v. Vidal, Department of Homeland Security v. Regents of the University of California, Trump v. NAACP

Is the Department of Homeland Security’s (DHS) decision to end the Deferred Action for Childhood Arrivals (DACA) program judicially reviewable and lawful?

The Supreme Court will consider three consolidated cases, which challenge the Trump administration’s decision to end the DACA program in 2017 on the grounds that it violated the Administrative Procedure Act (APA), a federal law governing administrative agencies that seeks to prevent arbitrary agency decisions, and the due process rights of DACA recipients.

The court will tackle two questions—whether the government’s decision to end DACA is something that courts can review at all and, if so, whether the decision to end DACA was legal.

“The question of whether DHS’ decision to rescind DACA can be subjected to judicial review hinges on whether the DACA recension is discretionary by law,” Ms. Ifill said.

The government, which asked the Supreme Court for review of a lower court’s decision requiring it to keep DACA in place before any courts of appeals weighed in, argued that the decision to rescind DACA was discretionary and therefore falls into an APA exception that insulates it from review.

“The idea that this would not be subject to review is very problematic, especially when you think about the claims raised in the lawsuit,” said Ms. Ifill, a longtime civil rights advocate. “There is a colorable equal protection claim—a claim that this decision is steeped and based in racial discrimination, and the idea that such a claim... would not be permitted for review would be a fairly alarming outcome.”

Mr. Turley said the case also highlights the heightened use of nationwide injunctions by trial courts, which were fairly uncommon.

Noting that the Obama administration faced nearly half of the nationwide injunctions that the Trump administration has faced, which totals about 40, he said the court may likely be encouraged to “hand down greater and clearer guidelines” on their use.  

June Medical Services, LLC v. Gee

Is a Louisiana law that would require abortion providers to have admitting privileges at nearby hospitals constitutional?

In this case, the court will examine a Louisiana state law that requires doctors performing abortions to have admission privileges at a state-authorized hospital within 30 miles of the abortion clinic.

As recently as 2016, the Supreme Court held that a Texas law with the same requirements could not place restrictions on abortion services that create an undue burden for women seeking them.

Mr. Turley said while fact finding on a trial level is typically given much deference on review in courts of appeals, in this case the 5th Circuit Court of Appeals seemed to “swat away” findings of facts by the trial court.

 “It's clear, first of all, that these judges wanted to go to the Supreme Court,” he said. “They wanted to a second bite at the apple because the [Supreme Court] had changed.”

June Medical Services is the first abortion-related case to reach the court since the death of Justice Antonin Scalia and the retirement of Justice Anthony Kennedy, who have since been replaced by Justices Neil Gorsuch and Brett Kavanaugh.

Turley said the case will illuminate Chief Justice John Roberts’ emerging role as a “swing vote” in the court, which has a 5-4 conservative majority.

Ms. Ifill, however, said the real question is whether Mr. Roberts will “endorse” the court of appeals’ conduct in its review of the trial court’s facts.

"This case really disturbs me because the district court did its job, and when you do that and you have this kind of record, and the 5th Circuit shows that kind of disrespect to the findings of facts and countermands the role of the district court, then there is a real problem," she said. 

New York State Rifle & Pistol Association Inc. v. City of New York, New York

Is New York City’s ban on transporting a licensed handgun outside city limits consistent with the Second Amendment, the Commerce Clause and the constitutional right to travel?

This case pending before the Supreme Court deals with whether the strict gun ownership law of New York City, which restricts the transport of a licensed firearm outside of one’s home interferes with Second Amendment rights. It is the first major gun-related case to be heard by the court in nearly a decade.  

Mr. Shanmugam, whose firm filed a brief on the matter in support of the city and who has argued 27 cases before the Supreme Court, said the court may not get to the merits of the case.

“I think this may turn out not to be the first Supreme Court case on a substantive Second Amendment question,” he said.

After the city won a favorable judgement in the 2nd Circuit Court of Appeals, it amended the ordinance after the Supreme Court granted review on the matter. The state then also passed a law enforcing the city’s revocation of the ordinance.

“There is a substantial threshold question about whether or not this case is now moot by virtue of this amendment, which was clearly undisputedly in reaction to the Supreme Court's decision to grant review,” Mr. Shanmugam said.

Bostock v. Clayton County, Georgia; R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, Altitude Express Inc. v. Zarda

Does a federal law that prohibits employment discrimination based on sex also extend to sexual orientation under Title VII of the Civil Rights Act of 1964?

This set of consolidated cases considers whether the federal law that prohibits employment discrimination “because of… sex” prohibits discrimination against individuals because of their sexual orientation or transgender status.

Mr. Stern said this case rests on statutory interpretation of “what sex means.”

He said several theories have developed to explain why sex discrimination already encompasses discrimination on the basis of sexual orientation and gender identity, but it could be tricky to apply some, which rely on conservative legal theories, to get a progressive results.

“The history of sex discrimination under Title VII has a history of growth and evolution of our understanding of what that terms means,” Mr. Stern said. “There is nothing in Title VII that says sexual harassment is prohibited. The courts took years to develop a theory that sexual harassment was itself a form of sex discrimination, a theory that Supreme Court itself didn’t validate until 1989.”

However, Mr. Shanmugam said the case may not be so “open and shut,” considering contrary arguments that in number of anti-discrimination statues, sex and sexual orientation are used separately.

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