The U.S. Supreme Court’s 2019–2020 term is rapidly reaching its conclusion. By the end of June, the Court is expected to decide several high-profile cases that involve some of the most contested issues in American law, from abortion to school choice to federal anti-discrimination rules. Here are three cases to watch in the coming weeks.
June Medical Services v. Russo
The state of Louisiana requires doctors who perform abortions to have admitting privileges at local hospitals. That restriction sparked a constitutional challenge from abortion providers, who argue that the law serves no valid health or safety purpose and violates the Court’s own precedents forbidding regulations that place an “undue burden” on abortion rights.
If that sounds familiar, it’s because the Court decided a nearly identical dispute in Whole Woman’s Health v. Hellerstedt (2016), striking down a Texas law that required abortion providers to have admitting privileges at local hospitals. Among other things, June Medical Services will show whether a majority of the Court is interested in following Whole Woman’s Health or in crafting a new jurisprudence that is more deferential towards state restrictions on abortion.
Espinoza v. Montana Department of Revenue
In 2015 the Montana legislature created a scholarship program “to provide parental and student choice in education.” It operates by creating a tax credit for individuals and businesses that donate to private, nonprofit scholarship organizations, which then use such donations to fund educational scholarships. Families who qualify may use the money to help send their children to a “qualified education provider,” a category which includes religiously affiliated K–12 private schools.
But the Montana Supreme Court killed the program off three years later, holding that it violated a provision of the Montana Constitution which bans the use of public funds “for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”
The question for the U.S. Supreme Court is whether the state may prohibit the sort of school choice initiatives that the Court itself has previously upheld under the First Amendment. In Zelman v. Simmons-Harris (2002), for example, the Supreme Court ruled in favor of a school choice program in Cleveland, Ohio. The program’s opponents claimed it was unconstitutional to provide tuition aid to parents who opted to send their children to religiously affiliated magnet schools. But the Court said such a system passes constitutional muster as long as it is “neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice.”
Bostock v. Clayton County, Georgia
Title VII of the Civil Rights Act of 1964 makes it illegal for an employer to discriminate against a job applicant or employee “because of such individual’s race, color, religion, sex, or national origin.” Gerald Lynn Bostock argues that Clayton County, Georgia, violated this provision when it fired him from his job as a child welfare services coordinator solely because of his sexual orientation. The far-reaching question before the Supreme Court is whether employment discrimination because of sexual orientation qualifies as employment discrimination “because of…sex” under Title VII.
As I’ve previously noted, Bostock and his lawyers have enlisted the support of a surprising legal ally in the case:
In their principal brief to the Supreme Court, Bostock and his lawyers rely in part on Justice [Antonin] Scalia’s unanimous 1998 ruling in Oncale v. Sundowner Offshore Services, Inc. At issue was whether same-sex workplace harassment violated Title VII’s prohibition on discrimination “because…of sex.” Scalia held that it did.
“Male on male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” Scalia acknowledged. “But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” The protections of Title VII, Scalia concluded, “must extend to sexual harassment of any kind that meets the statutory requirements.”
Scalia, a self-described textualist, often argued that the plain meaning of a statute should trump the ostensible intentions, purposes, or expectations of the statute’s authors and supporters. That was one of the reasons why Scalia famously rejected the use of legislative history in such statutory cases.