Monday, Oct. 7 marks the start of a new U.S. Supreme Court term. The justices will tackle several high profile issues—guns, immigration, healthcare, and possibly abortion—putting the court front and center as we enter a presidential election year. The court loomed large in the 2016 election, and the new term has the makings to do the same on Election Day 2020.
On the first day of the term, the justices will hear oral argument in Kahler v. Kansas, a capital case involving the insanity defense. Cases involving capital punishment tend to produce fierce disagreements among the justices, so this will be one to watch.
While the insanity defense has a long history in Anglo-American law, it is not a constitutional rule states are required to follow. Indeed, after a jury found John Hinckley, Jr., President Ronald Reagan’s would-be assassin, not guilty by reason of insanity in the early 1980s, some states decided to limit the use of this defense.
In Kansas, a criminal defendant may introduce evidence of insanity as a way to show he lacked the mens rea—the guilty state of mind—necessary for a conviction instead of using insanity as an affirmative defense. Enter, James Kahler. He shot and killed his estranged wife, two teenage daughters, and his wife’s grandmother.
Kahler argues that Kansas violated his right to due process of law—as well as the Eighth Amendment’s prohibition on cruel and unusual punishment—by limiting his use of the insanity defense.
Kansas asserts that states enjoy broad discretion in defining crimes and the Eighth Amendment concerns punishment rather than what types of affirmative defenses may be brought in a criminal trial.
On the second day of the term, the justices will hear a trio of cases—Bostock v. Clayton County, Georgia,Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC—involving the federal law prohibiting discrimination in employment based on sex.
These cases ask the court to extend the definition of sex discrimination found in Title VII of the Civil Rights Act of 1964 to include sexual orientation and gender identity. The cases were brought by a gay child welfare services coordinator, a gay skydiving instructor, and a male funeral home director who was fired after announcing he was transitioning to become a woman.
In the first two cases, the employers cite reasons completely unrelated to sex for firing their employees and argue that, in any event, Title VII’s prohibition on sex discrimination does not include sexual orientation. In the third case, the funeral home acknowledges that it fired the director because his transition to becoming a woman posed several problems for the business and maintains that Title VII does not cover transgender status.
When Congress enacted Title VII in 1964, it sought to outlaw discrimination against women in the workplace. For years, LGBT activists have sought to expand Title VII, but while Congress has included sexual orientation and gender identity in other civil rights laws, it has not amended Title VII.
Now the issue is before the Supreme Court. Both sides claim the text supports their interpretation of Title VII.
Justice Elena Kagan observed last term that judges should consider the text, history, and purpose when construing ambiguous language, so those other considerations may carry the day. And some justices may decide the issue is better left to policymakers in Congress.
In all of these cases, the Supreme Court justices must ask whether it is within the scope of their authority to decide these issues, or whether some things should be left to state legislators (in the insanity defense case) or members of Congress (in the Title VII case). It’s a perennial debate at the Supreme Court and one we expect will be in full display in the new term.
This piece originally appeared in Orange Country Register on 10/4/19