A Latham & Watkins Forum on September 25 previewed the upcoming US Supreme Court term with a panel that included Sudler Family Professor of Constitutional Law Richard Pildes; SCOTUSBlog co-founder Amy Howe; and Roman Martinez, a partner in Latham’s appellate and Supreme Court practice.
Among the topics they covered were the Court’s newest justices, Neil Gorsuch and Brett Kavanaugh, as well as several closely watched cases: litigation centering on the Trump administration’s efforts to end the Deferred Action for Childhood Arrivals (DACA) program and two consolidated appeals that ask the Court to determine whether Title VII of the Civil Rights Act prohibits employment discrimination based on sexual orientation. AnBryce Professor of Law Deborah Malamud moderated the discussion.
Amy Howe: “Frequently when you get new justices, there are rumblings of complaints behind the scenes that the new justice is asking too many questions, that the new justice doesn’t understand his or her place on the Court.… I did not hear any of those with Justice Kavanaugh. He was prepared and engaged—sort of knew what he was supposed to be doing on the Court in terms of his role as a junior justice.”
Richard Pildes: “One of the things that’s becoming clear about Justice Gorsuch is that he is, I would say, generally kind of a libertarian in orientation. And he’s libertarian across different kinds of cases…. Justice Gorsuch voted in criminal cases a number of times to be the fifth vote with the group of liberal justices to not extend criminal law into certain areas or to hold certain criminal statutes unconstitutional. And so that’s turning out to be a very interesting and distinctive feature, I think, of Justice Gorsuch’s jurisprudence and not something that would have been obvious, at least to me, before he went on the Court.”
Roman Martinez: “A side note to the discussion so far on the DACA case is that a version of this case or a similar version of this case came up to the Court a few years ago.… One argument that the Obama administration made in that case was that this was just not judicially reviewable at all. And they said this is a question ultimately about how we enforce the immigration laws. ‘We have prosecutorial discretion in how we enforce the immigration laws. Courts need to stay out of that.’ And what’s interesting is that you now see the Trump administration making those exact same arguments here. And so I’m sort of skeptical that the Court is going to think it can’t rule on these questions.”
Deborah Malamud: “Two important courts of appeal, first the Seventh Circuit in the Hively case, then the Second Circuit here in New York in the Zarda case, went in that direction.… Their basic point was that the ordinary workings of Title VII were good enough to [bar discrimination based on sexual orientation]. And in fact, the Second Circuit’s opinion in Zarda is an opinion that I would describe as being dull by design.… You would expect great exhortations to personal liberty in the style of the gay marriage cases. But instead what you get is stuff [where] you can barely turn the page because it seems so boring. But that’s exactly the point—to make the argument rhetorically that this is just really a normal extension of the law.”
Follow the full discussion on video:
Posted October 14, 2019