24 NEWSWEEK.COM OCTOBER 04, 2019
hree explosive cases are about to test
whether conservative Supreme Court justices
are seen to rule according to their professed
legal principles—or their politics.
On October 8, just day two of the new term,
the Court will hear arguments questioning if
the federal law that prohibits workplace discrimination “because
of...sex”—Title VII of the Civil Rights Act of 1964—applies to dis-
crimination on the basis of sexual orientation and gender identity.
Millions of Americans’ rights are at stake. About 4.5 percent
of the adult U.S. population identify as gay or lesbian—about
11.3 million people—according to a recent Gallup poll. Another
1.6 million are transgender, estimates a friend-of-the-court brief
submitted by 82 scholars who study that population. Though 22
states have enacted their own laws barring discrimination on the
basis of sexual orientation and/or gender identity, 28 have not,
meaning that about 44 percent of the LGBTQ population relies
solely on Title VII for workplace protection.
Interest in the case extends far beyond the LGBTQ community
itself. More than 1,000 outside organizations and individuals have
weighed in via more than 70 friend-of-the-court briefs. Among
those supporting LGBTQ employees are more than 200 major cor-
porations (including Apple, General Motors, IBM and State Farm),
all the major unions, the American Psychological Association, the
American Psychiatric Association and the American Medical As-
sociation. The defendant employers, in turn, count among their
supporters the Conference of Catholic Bishops, the National As-
sociation of Evangelicals and privacy groups whose members fear
having to use the same bathrooms as members of the opposite
biological sex. The Trump administration’s Justice Department
and the Equal Employment Opportunity Commission are also
backing the employers in these cases, and U.S. Solicitor General
Noel Francisco’s office will take part in the oral arguments.
The Court’s own credibility is also on the line.
At a time of profound skepticism about the Court’s claims of
nonpartisanship, its approach to these cases will be scrutinized for
signs of political bias. The Republican Senate’s blanket refusal to per-
mit Democratic President Barack Obama to appoint any successor
after the death of conservative Justice Antonin Scalia in February
2016 thrust the Court’s partisan underpinnings into a harsh, unde-
niable light. The damage was exacerbated when, as the 2016 presi-
dential election approached, several prominent Republican senators
pledged to try to deny Democrat Hillary Clinton any Supreme Court
appointments if she won. Just last month, four Democratic U.S. sen-
ators, led by Rhode Island’s Sheldon Whitehouse, filed an extremely
unusual friend-of-the-court brief in a gun-control case baldly assert-
ing that “the Supreme Court is not well,” that “the people know it,”
and hinting that the Court may need to be “restructured to reduce
the influence of politics.” As if that weren’t enough, a recent book
excerpt published in The New York Times, corroborating accusations
of collegiate sexual misconduct by now-Justice Brett Kavanaugh
(which he categorically denied at the time), has revived the partisan
rancor surrounding last year’s confirmation hearings and led some
Democratic presidential candidates to call for his impeachment.A Moment of Truth for Textualists
since kavanaugh was sworn in last october, replacing
swing-vote Justice Anthony Kennedy—a more moderate conser-
vative and strong champion of LGBTQ rights—Republican-ap-
pointed conservatives have commanded a solid five-person ma-
jority on the nine-justice Court. Looking just at the presumed
ideological proclivities of the justices, the LGBTQ employees in
these cases might be assumed to face an uphill battle.“CONGRESS HAS REPEATEDLY
DECLINED TO PASS
ADDING SEXUAL ORIENTATION
OF PROTECTED TRAITS IN