After adding seven new cases to their merits docket on Friday, the justices issued additional orders from last week’s conference. They did not add any more new cases to their docket, but they did deny review in a high-profile case in which they had been asked to decide whether a federal civil rights law barring employment discrimination “because of … sex” applies to discrimination based on sexual orientation.
The question arose in the case of Jameka Evans, who left her job as a security officer at a Georgia hospital, claiming that she had been harassed and passed over for a promotion because she is gay. The lower courts ruled that her case could not go forward because Title VII of the Civil Rights Act of 1964 does not prohibit workplace discrimination based on sexual orientation. The U.S. Court of Appeals for the 11th Circuit also ruled, however, that Evans could bring a claim alleging that she had been a victim of discrimination because she did not conform to gender stereotypes.
Evans then went to the Supreme Court, urging it to take up her case to resolve conflicting rules among the federal courts of appeals. Although the justices denied review after considering the case at just one conference, a procedural quirk in the case may have contributed to the decision to deny certiorari: The hospital where Evans worked (as well as the individual employees named in the lawsuit) told the justices that it had not participated in the case in the lower courts and would not do so in the Supreme Court even if review were granted. Evans and her lawyers responded that the hospital’s lack of participation should not thwart Supreme Court review, but the justices may have opted to wait for the issue to come to them again in a case with fewer complications.
The justices did not act on the case of Abel Hidalgo, the Arizona death-row inmate (represented by Neal Katyal, the former acting U.S. solicitor general) who has asked the Supreme Court to weigh in on the constitutionality of the death penalty. After considering Hidalgo’s cert petition at their December 1 conference, the justices asked the Arizona courts to send them the record in the case – which can be a sign either that at least one justice is looking at the case more closely or (especially in death-penalty cases) that someone is writing an opinion in the case. The most likely scenario seems to be that Justice Stephen Breyer, who in the past few years has repeatedly suggested that the Supreme Court should tackle the question now presented by Hidalgo’s case, is writing an opinion regarding the denial of review, but Hidalgo and we will almost certainly have to wait until the new year for an answer.
The justices’ next regularly scheduled conference is January 5, 2018.
This post was also published on SCOTUSblog.