By James J. Barney, Associate Professor of Legal Studies, School of Security and Global Studies, American Military University
Despite extensive legal commentary that Brett Kavanaugh’s confirmation as a Supreme Court Justice would firmly move the Court in a more conservative direction, Justice Kavanaugh so far has not had the expected impact.
For example, some legal commentators have noted that Chief Justice John Roberts was expected to replace retired Justice Anthony Kennedy as the Court’s so-called critical swing vote, retaining its 5-4 conservative tilt. But Roberts has not always joined the four conservative Justices when rendering his decisions. Rather than serving as another reliable conservative vote, Justice Kavanaugh has emerged more as Chief Justice Robert’s judicial ally.
The Court has issued only a handful of opinions touching upon employment law since Justice Kavanaugh joined the Court. So it is impossible to truly assess his influence there. However, several current employment cases before the Court dealing with Title VII of the Civil Rights Act of 1964 will provide further insight into Kavanaugh’s impact on the post-Kennedy Supreme Court.
Legal scholars probably will learn more about Justice Kavanaugh’s method of statutory interpretation — how judges and lawyers view statutes that are subject to various interpretations — from the decisions to be issued in the “because of sex” cases.
The three cases pending before the Supreme Court will decide whether Title VII’s prohibition against discrimination “because of sex” includes discrimination based on sexual orientation and sexual identity. The Court’s resolution of these three cases will address a series of Circuit Court splits regarding the interpretation of Title VII’s “because of sex” clause. A circuit split means multiple Circuit Courts — the intermediate appellate level court in the federal court system — have interpreted a legal issue differently.
‘Because of Sex’ Clause and Justice Kavanaugh’s Impact on the Supreme Court
On April 22, the Supreme Court decided to hear the three cases that address whether the prohibition against discrimination “because of sex” included in Title VII protects against discrimination related to gender identity and sexual orientation discrimination.
A majority of Circuit Courts have ruled that Title VII’s “because of sex” clause does prohibit discrimination based on gender identity and sexual orientation. However, the Tenth Circuit recently held that Title VII’s prohibition against discrimination “because of sex” does not include discrimination based on sexual identity, thus setting up a Circuit split on this issue.
The interpretation of the “because of sex” clause will probably center on the type of discrimination Congress intended to address when it passed Title VII; also, whether the clause should be interpreted in light of a contemporary understanding the word “sex.” Thus, the hearings in these “because of sex” cases will likely illustrate how a Justice’s judicial philosophy can affect the interpretation of statutes and how differing statutory methods might determine the rulings on these cases.
A broad interpretation of the clause “because of sex” would firmly establish protections based on either sexual orientation or gender identity. In contrast, a narrower interpretation of the clause — one that does not recognize protections based on either gender identity or sexual orientation — might set up a political struggle in Congress for a legislative fix to address such a Supreme Court ruling.
Regardless of their outcome, the judicial opinions on these three “because of sex” cases have the potential to provide much-needed clarity regarding a clause that has been the subject of increasing employment law litigation. Either ruling will also give employers clear guidance on whether federal law prohibits discrimination based on either gender identity or sexual orientation.
Roberts Likely to Be Critical Vote in the Employment Law Cases
Making projections about a future Supreme Court decision is often a waste of time. But there are trends that Court watchers have identified in the post-Kennedy era that provide clues to how the Supreme Court might resolve these cases.
One of these trends is the emergence of Chief Justice Roberts as the critical swing vote on the Court. For example, in a case dealing with abortion rights in Louisiana, Roberts sided with the liberal Justices, citing precedent established in a similar Texas case. Another trend is Roberts’ apparent attempt to avoid the widespread perception that the Supreme Court has shifted in a decidedly conservative direction.
As Supreme Court biographer Joan Biskupic has written, “Roberts has an institutional interest in ensuring that the court not swing too far to the right and he has already signaled that he might be trying to broker consensus across the ideological divide.”
Roberts, therefore, is unlikely to allow any decisions in these cases that might call into question the legitimacy and independence of the Court.
As Shannon Minter, a leading attorney on LGBTQ law, wrote in a May 2, Los Angeles Times op-ed article, “It is hard to see how the Supreme Court could rule against the LGBTQ workers in these new cases without upending decades of established law.”
To avoid such a result, Roberts, along with the so-called four liberal Justices, will side with the majoritarian view — that is, the view expressed by the majority of Circuit Courts — on each of the legal questions raised in the “because of sex clause” cases.
Moreover, the future judicial opinions in these cases will provide Supreme Court watchers with a clearer understanding of Justice Kavanaugh’s methods of statutory interpretation, and offer additional insight into his long-term impact on the Supreme Court.
About the Author: James Barney is an Associate Professor of Legal Studies in the School of Security and Global Studies. In addition to possessing a J.D., James has several master’s degrees, including in American foreign policy. He is currently completing his Ph.D. in History. James serves as one of the faculty advisors of the Phi Alpha Delta law fraternity as well as the Model United Nations Club and acts as the pre-law advisor at APU. Currently, he is working on a year-long research project that focuses on Justice Kavanaugh’s impact on the Supreme Court.
James is licensed to practice law in New York, New Jersey, Alabama and the District of Columbia. Over the past several years, he has served in various roles at debating and moot trial competitions in New York and Washington, D.C. In 2019, James will coach the APUS mock trial team at Phi Alpha Delta’s annual mock trial competition in Arlington, Virginia and will also serve as one of the faculty advisors for the school’s Model UN delegation to the National Model United Nations-Washington D.C. conference.
To contact the author, please email IPSauthor@apus.edu. For more articles featuring insight from industry experts, subscribe to In Public Safety’s bi-monthly newsletter.
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