UB School of Law Prof. Garrett Epps Predicts ‘Hot October Term’ as Supreme Court Takes on Controversial Cases

It’s the first Monday of October, and that means Supreme Court watchers are sitting up straight. The 2019 term began today, and already a number of potentially controversial cases are on the docket. Pending SCOTUS review are federal protection for LGBTQ employees, gun rights, abortion rights and the fate of the Deferred Action for Childhood Arrivals (DACA) program, with rulings expected during the hotly contested 2020 presidential election.

Speaking to Big News Network on Oct. 6, Prof. Garrett Epps said, “It would probably be a mistake to expect that many of the high-profile cases will be unanimous or nearly unanimous; more likely is a series of angry 5-to-4 decisions. …

Prof. Garrett Epps

Prof. Garrett Epps

“The court is nearly as polarized along partisan lines as is the nation, and like the rest of us is stressed by the unpredictability of the political situation and the Trump administration,” Epps continued. “All told, this is going to be a hot October term.”

On its very first day, the court heard arguments from a Kansas death-row prisoner that the state can’t abolish the insanity defense, and began considering whether the Constitution requires unanimous jury verdicts throughout the nation. Currently, Louisiana and Oregon allow split verdicts.

Writing in The Atlantic about the insanity case, Kahler v. Kansas, Epps noted that the SCOTUS ruling will affect whether five states —  Kansas, Alaska, Idaho, Montana and Utah — could do away with the insanity defense. The state of Kansas argues that not only do states have the right to determine the substance of their criminal law, they ought to have additional latitude in determining what constitutes insanity, he wrote.

In an amicus brief for the defendant Kahler, Epps reported, the American Psychiatric Association “cites scientific evidence that the inability to tell right from wrong is not a lawyers’ fabrication but a recognized effect of some forms of mental illness; while most of the mentally ill are harmless, a small number become so deluded they do not know right from wrong.

“Punishing those who don’t understand what they did, the APA brief suggests, does not serve the moral function of criminal law, and by definition cannot deter people who later fall under similar delusions,” Epps concluded.

Last week, the court agreed to hear a challenge to a Louisiana law that requires physicians who perform abortions to have admitting privileges at area hospitals, a policy that would limit abortion access across the state. Observers are watching carefully to see whether Chief Justice John Roberts sides with the conservative majority after agreeing with his liberal colleagues in 2016, thereby temporarily preventing Louisiana from implementing the requirement.

The justices on Oct. 8 were to hear oral arguments in three related cases that are being described as a test of how the five conservative justices on the bench will approach LGBTQ rights. Epps wrote about these cases in a Sept. 26 article.

In two of the cases — Bostock v. Clayton County and Altitude Express v. Zarda — the question is whether Title VII of the 1964 Civil Rights Act prohibition on sex discrimination extends to sexual orientation. Employees at both organizations claimed they were fired because they are gay.

In the third case — R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission — the justices will consider whether Title VII’s ban on sex discrimination applies to transgender people. The transgender woman at the center of the case claims she was fired from job as a funeral director because of her gender identity.

The 1964 law says, rather broadly, that employers cannot discriminate “because of sex.” In 2015, the Equal Employment Opportunity Commission, under the Obama administration, ruled that these protections included discrimination against LGBTQ people.

But the Trump administration has rolled back some of the Obama-era protections for LGBTQ people and has sided with the employers in all three of these cases.

In November, justices will hear oral arguments in three cases that challenge the legality of the Trump administration’s decision in 2017 to end DACA. They will also decide on the issue of whether New York City’s now-defunct ban on carrying a handgun to a home or shooting range outside of the city limits violates the Second Amendment.

Keep an eye on Epps’ articles in The Atlantic for news and analysis throughout the SCOTUS term.

About University of Baltimore School of Law

The University of Baltimore School of Law provides a rigorously practical education, combining doctrinal coursework, intensive writing instruction, nationally renowned clinics and community-based learning to ensure that its graduates are exceptionally well prepared to practice law.
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