After the previous Supreme Court term saw changes to the census struck down and the trial of a black Mississipian thrown out, the highest court once again prepares to hear cases on a range of issues that could stand to significantly change America’s legal fabric.
Since Oct. 7, the Court has begun to adjudicate high-profile cases related to LGBT employment discrimination, abortion and gun control — all of which constitute polarizing social issues that have the potential to end up as major, precedent-setting verdicts.
As a specialist in constitutional law, Cornell Prof. Michael Dorf, law, who have clerked for previous Supreme Court Justice Anthony Kennedy, weighed in on the upcoming series of cases some media outlets have described as a “blockbuster term.”
The ruling on some of the cases, such as Bostock and Altitude Express Inc., which involves a Long Island man who was allegedly fired for his sexual orientation, might test the limits of the Civil Rights Act’s Title VII and whether its prohibition on sex-based discriminatory employment practices also extends to sexual and gender identity.
According to Dorf, the Supreme Court’s decision will come down to whether a majority of its nine Justices read the statutory text plainly, or defer the definition of sex discrimination to Congress and other political branches.
That basic question stands to possibly rearrange the Court’s traditional allegiances on unusual lines, as “it poses a conflict between … the preferred methodology versus their ideological druthers” for the right-leaning jurists, Dorf said.
While conservatives typically prefer to interpret the law solely on the basis of the words actually written — a legal doctrine commonly known as textualism — supporters of a more narrowly-construed Title VII, such as the Trump administration, have argued the Court should go beyond the statute’s text to consider the intentions of Congress at the time.
But more practically, the Court’s decision on the case could have an impact on millions of people whose status under Title VII has yet to be definitively decided and live in states where additional protections have yet to pass.
“It is an important case because of its practical consequences for thousands or millions of people who face the prospect of discrimination,” Dorf said.
Another high-profile case, New York State Rifle & Pistol Association Inc. v. City of New York — a suit that originated when New York City heavily restricted the transport of otherwise licensed firearms outside of one’s home — may decide to what extent states and cities can pass gun control measures without running afoul of the Second Amendment.
Since District of Columbia v. Heller, which, in 2008, held that the Second Amendment protects an individual’s right to own and carry a firearm for the purposes of self-defense, the Court has yet to hear a major case on gun control. For that reason, this case may offer crucial clarification on the judges’ stances, as a wave of mass shootings since then has encouraged lawmakers to contemplate increasingly aggressive moves to control gun ownership.
“[The Court] has had a lot of opportunities to weigh in on gun control issues, but has mostly passed on those,” Dorf said. “This is the first case in essentially a decade in which the Court is likely to clarify the scope of the Second Amendment right to possess firearms.”
This Supreme Court term marks only the second with President Trump’s full roster of judicial appointees: Justice Neil Gorsuch, who replaced Antonin Scalia, and Justice Brett Kavanaugh, who succeeded Anthony Kennedy. With these two appointments, the Court has taken on a decidedly conservative character, with now five Justices on the bench holding what are generally described as right-of-center legal views.
Despite this, Dorf said that on issues in which the justices do not hold strong “first-order preferences” — such as guns or abortion — there is still often a suprising degree of variation within conservative ideologies that can influence judicial outcomes.
“There are interesting intra-conservative disagreements. There are alliances that you see that aren’t exactly ideological left [or] right,” Dorf said. “Conservatism is not monolithic. Some of the conservative justices have a libertarian streak and there is substantial overlap between liberal and libertarian sometimes.”
In the Title VII case’s oral arguments, for instance, Justice Gorsuch appeared to speak approvingly of including sexual orientation as a protected class, mirroring the arguments of the traditionally more liberal Justice Elena Kagan.
But beyond the most politicized or headline-grabbing cases, there can be cases that look unimportant to the general public that end up being extremely important, according to Dorf. Conversely, there can be potentially “revolutionary” cases that are decided on a very narrow ground.
“Cases that turn out to be very important sometimes don’t look that way when they are argued,” Dorf said. “I don’t think that we will know how consequential the term was until it is over.