Part III – Civil Rights, Voting Rights and Equal Protection

Mr. Katyal began with some statistics, pointing out that in 7 federal criminal cases before the Court this term, the Government lost 6 of them and suggesting that “something is afoot” in the country and the Court regarding the belief that over-criminalization has gone too far. He also noted that the attorney appearances before the court are still nowhere in line with what law schools and modern practice look like; although there is a 50/50 gender split in law schools, only 19% of arguments this term (and 15% last term) were made by women.

Most of Mr. Katyal’s presentation discussing Obergefell v. Hodges, the historic decision granting a right to gay marriage throughout the nation. Mr. Katyal was outside the court when the decision was handed down, and he described the scene as emotional, and clearly historic. He noted that retired Justice Stevens was even present in the court room, and that this was the first time that Chief Justice Roberts actually read a dissent. Mr. Katyal disagreed with the opinion of many that this is the most important case of the term, but suggested it was potentially the most important in terms of immediate consequences.

The nature of dissents was discussed, particularly in how they are written. It was suggested among the panelists that Justice Scalia’s dissent in this case, and the trend in many cases recently, is hurting his credibility more than helping him. There was also a brief discussion about Department of Homeland Security v. MacLean, a case interpreting federal whistleblower law. In this case, the majority, which included all but Justices Sotomayor and Kennedy, held that agencies cannot write their own exceptions to the whistleblower act. Thus, it was improper to fire a federal air marshal after a second whistleblowing incident. This case was significant additionally because it had been argued by Mr. Katyal.

Finally, Texas Department of Housing v. Inclusive Communities Project, Inc. was touched upon. This was a Fair Housing case regarding the cognizability of disparate impact claims. Mr. Katyal described the case as a 5-4 decision that surprised a lot of people and in which the left of the court held together remarkably, as it did during much of the term. The court held that the claims that unintentional discrimination claims may be pursued based on disparate impact of the law or practice in question.

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Tagged: Litigation, Appellate Practice, Supreme Court of the United States