All posts by Chris Schmidt

On This Day in Supreme Court History—June 12, 1967: Loving v. Virginia Announced

Today marks the 53rd anniversary of Loving v. Virginia, the Supreme Court decision striking down bans on inter-racial marriage in sixteen states.  The case was argued on April 10, 1967, and announced just two months later, on June 12.

Mildred and Richard Loving in 1967

Looking back on the oral arguments in the case, several points stand out.  First, the momentum in the case was clearly on the side of those challenging these offensive laws.  The winds of change were behind them, and the Justices were clearly with them.  Philip J. Hirschkop, the ACLU lawyer who made the equal protection argument for the challengers (another lawyer made the due process argument) spoke with almost no interruption from the bench.  His central argument was stark and direct.  “You have before you today what we consider the most odious of the segregation laws and the slavery laws and our view of this law, we hope to clearly show is that this is a slavery law,” he told the Justices.  He later made the point more concisely: “These are slavery laws pure and simple.”  Hirschkop also compared the law to the policies of Nazi Germany and South Africa.  Those who passed these laws “were not concerned with the racial integrity,” he argued, “but racial supremacy of the white race.”

When Virginia’s assistant attorney general defended his state’s anti-miscegenation policy, by contrast, he faced an engaged and skeptical bench.  Chief Justice Earl Warren and Justice Hugo Black were particularly aggressive.  Virginia’s legal defense had two prongs.  Its primary argument was based in history.  The framers of the Fourteenth Amendment did not intend it to prohibit these kinds of regulations, and therefore the Court should not read it to do so.  (The challengers countered that the proper originalist analysis should not focus on the narrow intentions of the framers but on the more general purposes of the Amendment.)  Virginia’s lawyer knew that this was his strongest line of argument and he spent most of his time elaborating on it.  The problem here—as he surely knew—was that he was talking to a Court that simply did not feel constrained by these kinds of arguments.

Virginia’s second line of defense was that the state had a rational basis for its policy. These were the arguments that led Chief Justice Warren and Justice Black to lash out at the attorney.  The core of this argument, in the words of the assistant attorney general, was that according to “the most recent available evidence on the psycho-sociological aspect of this question … intermarried families are subjected to much greater pressures and problems then those of the intramarried.”  For this reason, Virginia’s “prohibition of interracial marriage … stands on the same footing as the prohibition of polygamous marriage, or incestuous marriage or the prescription of minimum ages at which people may marry and the prevention of the marriage of people who are mentally incompetent.”  In challenging these kinds of claims that anti-miscegenation policy was intended to promote social welfare, Chief Justice Warren looked back to the Brown v. Board of Education decision he had written thirteen years earlier.  “[D]idn’t we in the segregation cases  have also argued to us what was supposed to be scientific evidence to the … effect that whites would be injured by having to go to school with … the Negroes?” he asked.  In response, Virginia’s lawyer insisted that with regard to miscegenation, the scientific evidence is “voluminous in its character” and it “supports the view not of racial superiority or inferiority, but a simple matter of difference.”  Warren at one point noted that the list of states that had school segregation laws in 1954 and the states that have miscegenation laws in 1967 was nearly identical.   At the conclusion of the lawyer’s presentation, instead of the Chief Justice’s traditional “thank you,” a clearly disgusted Warren could only muster a dismissive “I see.”

Justice Black’s skepticism also hearkened back to his experience in Brown.   When Virginia’s lawyer referenced what he characterized as the extensive and conflicting scholarship on the societal effects of interracial marriages, Black stepped in.  “[A]side from all questions from the genetics, psychology, psychiatry, sociology, and everything else aside from all of them, forgetting it for the moment, is there any doubt in your mind that the object of this statute, the basic premise on which they rest, is that the white people are superiors of the colored people and should not be permitted to marry?”   Black had been dismissive of the sociological and psychological materials that had made its way into the Brown decision.  He had framed the issue in that case in similarly stark terms, telling his colleagues he did not need social science to tell him about the meaning and effects of racial segregation.

Another striking moment at oral argument came when Bernard S. Cohen, the lawyer who was responsible for making the due process-based challenge to the anti-miscegenation statute, framed the possible legal pathways for identifying marriage as an unenumerated fundamental right under the Constitution.  He offered up the following marathon sentence—one that could only be offered (with a straight face) to the Supreme Court at the highwater mark of the Warren Court:

Now, whether one articulates in terms of the right to be free from racial discrimination as being due process under the Fourteenth Amendment or whether one talks of the right to be free from infringement of basic values implicit in ordered liberty as Justice Harlan has said in the Griswold case, citing Palko v. Connecticut or if we talk about the right to be free from arbitrary and capricious denials of Fourteenth Amendment liberty as Mr. Justice White has said in the concurring opinion in Griswold or if we urge upon this Court to say as it has said before in Meyer v. Nebraska and Skinner v. Oklahoma that marriage is a fundamental right or liberty and whether we go further and urge that the Court say that this is a fundamental right of liberty retained by the people within the meaning of the Ninth Amendment and within the meaning of liberty in the Due Process Clause of the Fourteenth Amendment.

Wow.  The possibilities here!  For the ambitious liberal cause lawyer, it must have been quite an experience standing before the Justices in 1967 and charting the potential courses the Warren Court might strike out on.

Then there was the moment during oral arguments when one of the lawyers for the Richard and Mildred Loving, the mixed-race couple who were married in Washington, D.C., and then arrested when they attempted to return to their native Virginia, put the case in the most personal possible terms.: “No matter how we articulate this, no matter which theory of the Due Process Clause or which emphasis we attach to, no one can articulate it better than Richard Loving when he said to me, ‘Mr. Cohen, tell the Court I love my wife and it is just unfair that I can’t live with her in Virginia.’”

Finally, one cannot listen to the oral arguments in Loving without hearing echoes of our recent debate over the constitutionality of bans on same-sex marriage.  We hear the same basic arguments blending equal protection and due process claims.  We hear challengers frame the issue in personal and moralistic terms while defenders rely on originalist arguments, social scientific debates, and pleas for judicial deference.  And we see the tide of history turning in the space of a single generation.

This Post was Written by ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

On This Day in Supreme Court History—April 3, 1944: The White Primary Struck Down

On this day in 1944, the Supreme Court, in the landmark case of Smith v. Allwright, struck down the Texas Democratic Party’s policy of excluding African Americans from participating in its primary election.

Texas state law authorized the state’s Democratic Party to establish its own operating rules. Among these rules was a requirement that all primary voters be white. Lonnie E. Smith, a black voter in Harris County, Texas, sued his county election official, S.S. Allwright, arguing that the Constitution prohibited Texas from allowing the state’s Democratic Party to  practice racial exclusion in its primary election.

The Democratic Party had controlled politics in the South since the late nineteenth century. Democrats dominated southern state and local offices and most federal representatives from the South were Democrats. In most southern states, the only competitive election was the Democratic primary. When the Democratic Party prevented African Americans from participating in their primaries, it effectively blocked southern blacks from casting the one vote that really mattered. The white primary combined with other forms of disfranchisement—poll taxes, literacy test, physical intimidation—to deprive black Texans, as well as other racial minorities, of the vote.

Texas defended itself against Smith’s lawsuit by arguing that the Democratic Party was a private association, so the state was not responsible for the party’s racial discriminatory policy. The Supreme Court rejected this argument. In an 8-1 decision, with Justice Stanley F. Reed writing for the majority, the Court found that the Texas policy that empowered political parties and gave them discretion to make their own rules violated the Constitution when it resulted in racial discrimination. Even though the Democratic Party of Texas is a voluntary association, the Court found primary elections were conducted by the party under state authority. The Court found the Texas policy infringed on Smith’s Fifteenth Amendment right to vote and also denied Smith his Fourteenth Amendment right to equal protection under the law. The Court reasoned that just like the right to vote afforded to citizens during general elections, citizens have that same right to participate in a primary election without racial discrimination.

This decision had widespread implications for black participation in Texas politics, although many discriminatory voter registration policies remained. By 1948, four years after Allwright, the number of registered black voters in the South rose to 800,000; by 1952 it reached over one million.

Smith’s efforts in Allwright also inspired Houston resident Barbara Jordan to pursue a political career. She would become the first African American elected to the Texas Senate since Reconstruction and then the first southern African-American woman elected to the United States House of Representatives.


This Post was Written by ISCOTUS Fellow Breana Brill, Chicago-Kent Class of 2021, and edited by  ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.


On this day in Supreme Court History—March 28, 1836: Chief Justice Roger B. Taney Takes Office

On March 28th, 1836, Roger B. Taney became the fifth Chief Justice of the United States. He succeeded John Marshall, arguably the most consequential justice in the history of the Supreme Court. Although Taney would achieve much during his time on the Court, history would not judge Taney’s tenure nearly as positively as that of his predecessor.

Taney was appointed by President Andrew Jackson, with whom he had been closely allied throughout his career. Taney had supported Jackson in both the 1824 and 1828 presidential elections, and had served as Jackson’s Maryland campaign manager in 1828.

Jackson rewarded Taney’s loyalty when, in 1831, he made him Attorney General. Taney would play a crucial role in Jackson’s “Bank War” by encouraging and supporting the president’s goal of eliminating the Second Bank of the United States. After being appointed interim Secretary of the Treasury, Taney helped Jackson remove federal deposits from the national bank and deposit them with state banks. Taney’s nomination to become the Treasury Secretary failed, the first time the Senate rejected a president’s cabinet nominee.

In early 1835, Jackson nominated Taney to fill the vacancy on the Supreme Court created by the retirement of Justice Gabriel Duvall. Jackson’s opponents in the Senate blocked the confirmation vote, however. In the next legislative session, Jackson and Taney fared better, and on March 28, 1836, Taney was confirmed; the Senate vote was 29 – 15.

During his twenty-eight years as Chief Justice, Taney presided over numerous important cases, such as Luther v. Borden, the License Cases, and the Prize Cases. He is most remembered, however, for his opinion for the Court in the case of Dred Scott v. Sanford. In an opinion widely regarded as among the most ignominious in the Court’s history, Taney wrote that decedents of African-born slaves, whether free or enslaved, were not United States citizens. Taney also concluded that Congress lacked the authority to regulate slavery in the territories, that the Missouri Compromise of 1820 was unconstitutional, and that slaves were property protected under the Fifth Amendment. Dred Scott wouldbe overruled after the Civil Ear by the Fourteenth Amendment, which was ratified in 1868 and stated that “[a]ll persons born or naturalized in the United States . . .” were citizens of the United States.

During the Civil War, Taney tried to constrain President Lincoln’s authority to prosecute the war, although to little effect. Taney served on the Court until his death on October 12, 1864. President Lincoln filled Taney’s vacant seat with Salmon P. Chase, a staunch anti-slavery Republican.


This Post was Written by ISCOTUS Fellow Alec Bodendorfer, Chicago-Kent Class of 2022, and edited by  ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

Abortion is Back at the Supreme Court: A Case Preview

The Court today hears oral argument in one of the most watched cases of the term, June Medical Services v. Russo. The Court will review a decision of the Fifth Circuit Court of Appeals upholding a Louisiana law that required abortion providers have admitting privileges at local hospitals. Louisiana’s law is basically identical to a Texas law that the Court struck down in 2016 in Whole Woman’s Health v. Hellerstedt. This is the first abortion case the Court has heard since the retirement of Justice Anthony Kennedy, who voted with the majority in Whole Woman’s Health, and his replacement with Brett Kavanaugh, who is generally considered more skeptical toward abortion rights than Kennedy.

The Texas law overturned in Whole Woman’s Health had two requirements: first, that physicians providing abortion have admitting privileges at hospital no more than 30 miles from the abortion clinic; and second, that any abortion clinic must meet Texas’s minimum standards for outpatient surgical centers. The Court determined that both requirements placed a substantial obstacle in the path of women seeking a pre-viability abortion and therefore violated the “undue burden” standard the Court has established in the 1992 Casey decision. Because these burdens outweighed any medical benefits the requirements may have conferred, the Court struck them down as unconstitutional.

In spite of the Whole Woman’s Health decision, the U.S. Court of Appeals for the Fifth Circuit upheld a similar admitting-privileges law in Louisiana. The appeals court found that because no abortion clinics would be forced to close, the law did not impose an undue burden on the women’s right to choose abortion. The Fifth Circuit then denied rehearing en banc in a 9-6 vote.

The Justices today will consider two basic issues, one focused on whether the litigants have a right to bring the legal challenge (a question of “standing”), the other on the merits of the challenge itself. Louisiana raised the standing question, arguing that abortion providers cannot assert legal claims on behalf of women seeking abortions (known as “third-party standing”). Because standing is a threshold question and must be decided before moving to the merits of the case, the Court is likely to start its questioning here. A ruling in favor of Louisiana on the issue of third-party standing could have dramatic if less attention-grabbing effects on the future of abortion rights, as this article explains.

Once the Court moves to the merits of the abortion regulation, June Medical is likely to argue, as they did in their brief to the Court, that stare decisis will be undermined if lower courts can simply ignore constitutional determinations by the Supreme Court in the way they assert the Fifth Circuit did here. They are likely further to argue that the Fifth Circuit improperly applied the Court’s undue burden test from Whole Woman’s Health. Louisiana will counter that the Fifth Circuit properly applied the undue burden standard to the law and appropriately found that its benefits to women’s’ health outweigh any burdens that it imposes on access to abortion.

For more information on the case from a variety of viewpoints:

Click here  for an explainer of possible outcomes from Vox

Click here for an opinion piece from the Director of Public Policy at the Population Institute

Click here for an article from National Review.

And click here for an article discussing the possible role of Clarence Thomas in the upcoming decision or here for an NBC News article discussing the possible role of Chief Justice John Roberts.

This Post was Written by ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, and edited by  ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

A Constitutional Challenge to the Consumer Financial Protection Bureau

Today the Supreme Court hears a case that challenges the constitutional foundations of the federal Consumer Financial Protection Bureau (CFPB). In Seila Law LLC v. Consumer Financial Protection Bureau, the Court must first decide whether the Congress violated the separation of powers principle when it created the agency. If the Justices hold the CFPB’s leadership structure to be unconstitutional, they must then determine if the section of the Dodd-Frank Act that establishes the agency’s leadership structure can be severed from the rest of the statute, thereby preserving the CFPB.

Congress created the CFPB in 2010 following the economic devastation caused by the 2008 financial crisis. The CFPB’s governing structure calls for the appointment of a sole director, appointed by the president for a 5-year term and subject to the approval of the Senate. Unlike other federal agencies, however, where directors work “at will” and can be removed for any reason, the CFPB’s director can only be removed by the president “for cause.”

The challengers in this case claim that Congress’ decision to have a single director of the CFPB and to make that person removable only for cause violates Article II of the Constitution. Congress, they argue, intrudes on the authority of the executive branch when it vests substantial executive authority in an agency whose sole director is partially insulated from presidential control.

Both the federal district court and the U.S. Court of Appeals for the 9th Circuit ruled in favor of the CFPB, citing various precedents, including Humphrey’s Estate Executor v. United States, a 1935 case in which the Court upheld the constitutionality of the Federal Trade Commission, which had five commissioners who could only be removed for cause. When the Selia reached the Supreme Court, the Solicitor General’s office chose not to defend the CFPB, and instead supported the challenger’s position. The Court appointed  Paul Clement,  a former U.S. Solicitor General, to defend the CFPB’s structure.

If the Court finds that the CFPB’s structure is unconstitutional, there remains the question of whether this means the entire Dodd-Frank Act must fall or whether the CFPB leadership provision can be severed from the rest of the law.

According to its website, since its inception the CFPB has provided $11.8 billion in relief to 29 million consumers from its enforcement activities.


This Post was Written by ISCOTUS Fellow Alec Bodendorfer, Chicago-Kent Class of 2022, and edited by  ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.



On this day in Supreme Court History—February 27, 1922: The Court Strikes Down a Challenge to the 19th Amendment

On February 27, 1922, the United States Supreme Court unanimously dismissed a challenge to the 19thAmendment to the United States Constitution.

Passed by Congress in 1919 and ratified in 1920, the 19th Amendment guaranteed women the right to vote. The text of the amendment reads as follows: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. Congress shall have power to enforce this article by appropriate legislation.” The amendment was the culmination of nearly a century of organizing, protests, and petitions for women’s right to vote.

After the monumental achievement of ratification, the new amendment still had to survive a legal challenge. In Leser v. Garnett, a prominent lawyer from Baltimore, Oscar Leser, sued to have women stricken from voting roles. Leser argued that the provision of Maryland’s constitution that limited suffrage to men was still in effect because the state’s legislature had refused to ratify the amendment. He also argued that procedural deficiences with the ratification process in various states meant the 19th Amendment had failed to secure the required approval of three-fourths of states.

The Court rejected each of Leser’s arguments. It pointed out that fifty years earlier, the 15th Amendment, which prohibited the use of race as a qualification for voting, went into national effect despite having been rejected by six states (including Maryland). The Court stated that the amendment process, as outlined in Article V of the Constitution,  could not be limited by provisions of state constitutions. The Court also dismissed Leser’s procedural claims.

Maryland would not certify the 19th Amendment until 1958.


This Post was Written by ISCOTUS Fellow James O’Brien, Chicago-Kent Class of 2021, and edited by  ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

The Supreme Court and the Future of Affirmative Action

By Vinay Harpalani, University of New Mexico School of Law.

On October 1, the U.S. District Court for the District of Massachusetts issued its much anticipated ruling in Students for Fair Admissions (SFFA) v. Harvard.  Almost one year after the trial began, Judge Allison D. Burroughs ruled that Harvard’s race-conscious admissions policy did not violate Title VI of the Civil Rights Act of 1964.  In a 110 page opinion, Judge Burroughs delved thoughtfully into the details of Harvard’s admissions process: the university’s self-studies of this process; its compelling interest in diversity; statistical models put forth by both SFFA and Harvard; and the prospect of using race-neutral alternatives to attain a diverse student body.   She found that Harvard’s policy did not intentionally discriminate against Asian American applicants, and that it was consistent with equal protection guidelines laid out in Grutter v. Bollinger (2003) and Fisher v. University of Texas at Austin II (2016)—guidelines that also apply to Title VI race discrimination.  Judge Burroughs’ opinion provides a meticulous exemplar for future courts that evaluate race-conscious admissions policies.

SFFA is sure to appeal the ruling to the U.S. Court of Appeals for the First Circuit.  Here, the district court’s ruling will likely be affirmed.  It is improbable that the First Circuit will want to reconsider the statistical models presented by SFFA and Harvard and the legal conclusions that Judge Burroughs drew from them.  One question that the First Circuit could revisit is whether Harvard fully considered race-neutral alternatives to attain a diverse student body.  This issue may also well be the focus of future lawsuits intended to eliminate race-conscious admissions policies.  Nevertheless, since Fisher dealt with the issue and Judge Burroughs addressed it thoroughly, a reversal on these grounds is also unlikely.  The precedent here is pretty clear: the “Harvard plan”, with its emphasis on educational benefits of diversity and on holistic admissions, was the basic model upheld in Regents of the University of California v. Bakke (1978) and later affirmed in Grutter and Fisher.

The big question now is whether the U.S. Supreme Court will grant certiorari, since SFFA is sure to appeal subsequently to the High Court.  The Court now has a solid conservative majority on this issue. Three of the Justices—Chief Justice John Roberts, Justice Samuel Alito, and Justice Clarence Thomas—have previously voted to strike down race-conscious admissions policies; and Justices Neil Gorsuch and Brett Kavanaugh are widely thought to oppose such policies.  Barring an unexpected vote from one of these Justices, a cert grant will likely mean the end of affirmative action in university admissions.  Even if the Court does not abrogate the compelling interest in diversity altogether, it could still require universities to fully exhaust race-neutral alternatives to attain this diversity.  This would make Grutter’s narrow tailoring standard virtually impossible to meet and effectively accomplish the same end.

However, there are a few reasons why the Justices might deny cert.  First, only three years have passed since the Court decided Fisher v. University of Texas II.  Even if the Supreme Court did not hear SFFA v. Harvard until 2023, that would still only be seven years after Fisher II.  In contrast, 25 years passed between the Court’s rulings in Bakke and Grutter, and another decade passed before the Fisher rulings.  Chief Justice Roberts cares about the legitimacy of the Court in the public’s eyes, and revisiting the contentious issue of race-conscious admissions now would likely fuel public perceptions that the Court is not impartial, but merely another political body.  Roberts may prefer that the Court wait a few years to take another case.  If he can convince at least one other conservative Justice that this is the best course, cert would be denied.

Additionally, if they are willing to wait, the conservative wing of the Court can eliminate race-conscious policies in a manner that is arguably consistent with Grutter.  In 2003, Justice Sandra Day O’Connor’s Grutter majority opinion posited that race-conscious admissions policies would no longer be necessary in 25 years—in 2028.  After she retired, Justice O’Connor stated that the 25 year timeframe was merely an aspiration.  However, others, including the late Justice Antonin Scalia and Justice Stephen Breyer, have suggested that this timeframe may be part of Grutter’s holding.  Consequently, the conservative wing of the Court, led by Roberts, could choose to wait until 2028.  They could then vote to end race-conscious admissions and contend that they are not eschewing precedent, but actually following Grutter’s time limit.

By 2028, the political implications of an anti-affirmative action ruling may also be different.  States have been taking various measures, from popular referenda to legislative and executive action, to eliminate race-conscious policies.  Trump’s Department of Justice has initiated investigations of race-conscious admissions policies, putting pressure on universities to curb back these policies.  SFFA has again sued the University of Texas, this time in state court, and it has also has a federal lawsuit pending against the University of North Carolina.  In another decade, there may be a Circuit split on affirmative action, as there was when the Court granted cert in Grutter.  A decade from now, all of these factors would make a ruling against affirmative action appear less politically-motivated and more consistent with precedent and popular will than a cert grant in SFFA v. Harvard.

Whether it happens sooner or later, most experts think that the Supreme Court will strike down affirmative action in university admissions.  Nevertheless, we should remember that the “Harvard plan” has been a resilient doctrine.  Four decades ago in Bakke, it saved affirmative action.  Twenty years ago, many observers predicted that Grutter, along with its companion case Gratz v. Bollinger (2003), would end race-conscious admissions policies.  But Justice O’Connor, who had previously been hostile to such policies, surprised them by embracing the Harvard plan in her Grutter opinion.  Justice John Paul Stevens also gradually changed his views on affirmative action, voting against race-conscious admissions policies in Bakke and then voting in favor of them in Grutter.  And even though Justice Anthony Kennedy dissented in Grutter, he then voted to uphold the Harvard plan in Fisher.

Expert predictions have often been wrong about Supreme Court jurisprudence regarding affirmative action.  Perhaps no major issue before the Court has so repeatedly bucked expectations.  At a time when the Supreme Court has become more conservative than ever, the best hope for proponents of affirmative action is that history keeps repeating itself.


Guest contributor Vinay Harpalani is an Associate Professor of Law at the University of New Mexico School of Law.


Opening the Supreme Court’s New Term

Last Monday, the Supreme Court began its 2019-2020 term. Early in its history, the Court typically had two annual sessions with various starting dates, but since 1917, Congress has set the first Monday of October as the opening of the Court’s annual term.

In 1978, a play that imagined the first woman appointed to the Supreme Court entitled “First Monday in October” opened on Broadway. The play was turned into a film by the same name, which was scheduled for release in 1982.  The release date was moved up to August of 1981 to coincide with the real-life appointment of the first female justice, Justice Sandra Day O’Connor, who joined the Court in September 1981.

A tradition connected with the beginning of the Court’s term is the Red Mass at the Cathedral of Saint Matthew of the Apostle and sponsored by the John Carroll Society. Taking place on the Sunday before the opening of each term for the past 67 years, the purpose of the mass is to bless the attending justices, members of the legal profession, and public officials before the beginning of the new Supreme Court term. The tradition of the Red Mass goes back to medieval Europe and is named for the garments worn by royal judges.  This year, three justices—Chief Justice Roberts and Justices Breyer and Thomas—attended. The record for attendance of Supreme Court justices is six, which occurred in both 2009 and 2012.

While some traditions go back decades, others are just beginning. This Term the Court has implemented a new policy of giving advocates two uninterrupted minutes of argument time before asking questions. Justices in recent years have been in the habit of allowing lawyers only a few seconds before interrupting them with questions. The new policy will allow lawyers to know they will have at least two minutes to craft their opening statements. In the first argument under this new policy, Justice Ginsburg wasted no time and asked the first questionof the day as soon as the white light signaled the introductory two minutes had expired.


This Post was Written by ISCOTUS Fellow James O’Brien, Chicago-Kent Class of 2021, and edited by ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.


Title VII’s Day at the Supreme Court

The Supreme Court today hears two cases that consider whether Title VII of the 1964 Civil Rights Act prohibits sexual orientation discrimination in the workplace and a third case that considers whether Title VII prohibits discrimination against transgender people.

Bostock v. Clayton County involves a man who was fired from his job as a child welfare services coordinator because he was gay. The U.S. Court of Appeals for the 11th Circuit rejected Gerald Bostock’s claim and held that Title VII—which prohibits discrimination “because of … race, color, religion, sex, or national origin”—should not be read to include sexual orientation as a protected class. Altitude Express v. Zarda involves a skydiving instructor named Donald Zarda who was also fired because he was gay. (Zarda died in 2014; his case is being carried on by executors of his estate.) The U.S. Court of Appeals for the 2nd Circuit came to the opposite conclusion from the 11th Circuit and ruled that Title VII’s prohibition on sex discrimination included discrimination based on sexual orientation.

The core of Bostock’s and Zarda’s argument for why sexual orientation discrimination violates Title VII is that their sex was ultimately the reason for their termination. If either had been female and had expressed sexual interest in men, reason their lawyers, then they would not have lost their jobs. Therefore, they were fired “because of … sex,” in violation of Title VII.

Both also point to the decision Oncale v. Sundowner Offshore Services, Inc., in which the Supreme Court unanimously held that Title VII could be read to prohibit same-sex sexual harassment even if the drafters of the law did not envision it applying to same-sex discrimination. “[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,” Justice Antonin Scalia wrote in the opinion for the Court, “and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

The third Title VII case the Court hears today is R.G. & G.R. Funeral Homes v. Equal Employment Opportunity Commission, which involves a claim by Aimee Stephens, who was fired by her employer after undergoing sex-reassignment surgery and identifying as a women. A federal district court ruled that Title VII does not prohibit discrimination based on gender identity, but the Court of Appeals for the 6th Circuit reversed.

Stephens’ argument is similar to that of Zarda and Bostock in that she argues her employer would not have fired her if she was assigned the sex of female at birth and therefore she was subject to discrimination because of her sex. She also argues that she was fired because of her inability to conform to her employer’s assumptions about gender roles, which is prohibited under the Supreme Court’s ruling in the 1989 case Price Waterhouse v. Hopkins.

The Title VII cases are among the most closely watched cases of the new term. Over two hundred large U.S. companies, including Amazon, Bank of America, Northrup Grumman, and Dow, filed a joint amicus brief in favor of adopting sexual orientation and transgender identification as a protected class under Title VII. The brief warns that failing to do so would cause “wide-ranging, negative consequences” on many U.S businesses.

Currently, over half the states have no laws protecting against discrimination based on sexual orientation and gender identity.


This Post was Written by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, and edited by  ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

On this day in Supreme Court History—April 10, 1869: Getting to Nine

On this day in 1869, Congress increased the number of justices on the Supreme Court from seven to nine—where it has remained ever since. (Whether the number should remain at nine has been a point of renewed attention in recent months.)

In 1866, Congress had reduced the number of Supreme Court justices to seven. Republicans who controlled Congress were battling President Andrew Johnson (a Democrat who had assumed office when Lincoln was assassinated), and they sought to deny Johnson any appointments to the Court. By 1869, Ulysses Grant, a Republican, had replaced Johnson, and Congress expanded the number of justices. Senator Lyman Trumbull sponsored the Judiciary Act of 1869, which, in addition to setting the number back to nine, also required six justices to form a quorum. President Grant signed the legislation and then nominated William Strong and Joseph Bradley to the newly restored seats.

The Act contained other notable provisions. It allowed all federal judges (including Supreme Court justices) to retire with full salary after serving for at least 10 years, provided they had turned 70. Previously, federal judges had no incentive to leave the court before their death, as the government offered no retirement benefits. The Act also created separate circuit judges for the circuits, and it allotted each Supreme Court justice one of the nine circuits in which that justice had to attend at least one term in each of the circuit’s districts every two years.

This Post was Written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.