Archive for the ‘Equal Protection’ Category


WHAT HAPPENED:  A Virginia School District made a rule that infringed upon a transgender student’s ability to choose which bathroom to use.  The student filed suit and lost at the original level.  The Federal Government (by way of the Dept. of Education) stepped in and stated that this action violated Title IX, which was the basis for the Fourth Circuit’s reversal of the lower decision in favor of the student.  In other words, the student is currently winning based on the opinion by the Department of Education.

WHY IS THIS BEFORE THE SUPREME COURT:  For one, it’s not the reason you think it is.  While there are certainly Equal Protection issues, Substantive Due Process issues, and general Constitutional concerns, this issue comes down to agency law; and specifically whether the Department of Education had the authority to issue an opinion based on Title IX, and whether the Fourth Circuit should have followed that opinion.

WHAT ARE THE RAMIFICATIONS:  For one, it’s not as significant as you might think.  While a ruling in favor of G.G. would give more power to trans students in an educational setting, there are probably very little ramifications outside of this specific context.  The issue in this case is limited to the value of the Department of Education’s opinion, so affirming that opinion would likely just benefit this student.  Similarly, a ruling against G.G. would likely just state that the grounds for the decision were wrong and that the Court has to review the findings again fresh.  To whatever extent this makes you feel better, a ruling against G.G. is not the end of the world, as the Court could still rule in favor of the student, just on different grounds.   Ultimately, the ramifications of this ruling are very limited to the problem at hand, even though the circumstances are a hot button issue.

ROOT FOR GLOUCHESTER COUNTY IF: (and only if) if you do not agree with the Department of Education’s interpretation of Title IX and the 4th Circuit Court of Appeals’ reliance on that opinion.

ROOT FOR G.G. IF: (and only if) you do agree with the Department of Education’s interpretation of Title IX and the 4th Circuit Court of Appeals’ reliance on that opinion.

PREDICTION:  4-4 push.

For every case in the podcast and the Fantasy League, we will provide a summary with important issues and what to worry about.

WHAT HAPPENED:  Following convictions for felony charges, defendant is subject to deportation proceedings. Defendant contests those proceedings on the grounds that the test for determining his citizenship is a violation of the Equal Protection Clause because the test makes it easier for children whose mothers were U.S. citizens to qualify than it does for children whose fathers were U.S. citizens.

WHY IS THIS BEFORE THE SUPREME COURT: Long before she was a Supreme Court justice, Ruth Bader Ginsburg helped shaped the Court’s Equal Protection test on gender discrimination by overturning laws and policies that favored women over men. These cases, which overturned mostly government benefits that favored women, set the ground work for US v Virginia, which held that a military academy could not have a policy that excluded women. My personal comparison to this is growing up thinking muffins were good way to eat a healthier breakfast (they have fruit!) only to find out years later they have like 600 calories each.

WHAT ARE THE RAMIFICATIONS: Aside from this defendant trying not to get deported, this case is a nostalgic callback to one of Ginsburg’s greatest hits. On one hand, this case fits squarely within those old cases and if history serves, this should be decided in conformity with those decisions. That being said, people are nuts about immigration right now, and while Ginsburg was successful in the past, there was a consideration by the Court of the balancing interests supporting the classification.  It would not be surprising to see a dissent that considers the policy that underlies this rule be valid, but it should be noted that the test for gender discrimination puts the government at a disadvantage.

ROOT FOR MORALES-SANTANA if you liked Star Wars: The Force Awakens and consider it a top 3 Star Wars movie.

ROOT FOR LYNCH if you liked Star Wars: The Force Awakens, but felt the need to be a stinker and complain about how it was an inferior remake of Star Wars: A New Hope.

PREDICTION: 5-3 in favor of Morales.


For every case covered in the podcast and the Fantasy League, we will provide a brief summary of everything you need to know and worry about for each case.

WHAT HAPPENED:  In 2013, the Supreme Court invalidated a provision of the Voting Rights Act that required States and Counties with a history of discrimination to seek approval for all new statutes on voting to prevent instances of latent and overt racism. Subsequent to that decision, North Carolina jumped at the opportunity to incorporate latent racism into its Voting procedures by passing the Omnibus election law which included banned voting procedures like early voting, early registration and instituted a voter ID law.

WHY IS THIS BEFORE THE SUPREME COURT: This case was brought before the Supreme Court under the remaining provisions of the VRA which bars States from passing discriminatory voting laws. The lower court found emphatically against the law, holding that the North Carolina provisions were passed to curtail African American Democratic votes.  This ruling was supported by considerable evidence in North Carolina, and is also generally considered true all around the country, because provisions like these routinely prejudice non-white voters.  The Supreme Courts job is now to determine whether or not that’s actually true both specifically (did the lower court have the authority to make that ruling) and generally (could any Court make that ruling).

WHAT ARE THE RAMIFICATIONS OF THIS CASE:  This case is checking the pulse of the Voting Rights Act. If North Carolina (McCrory) wins, the States can do whatever they want with voting as long as they can defend their laws with a straight face. If the Harris wins, the VRA will do that thing that happens at the end of horror movies where the camera focuses in on a grave stone and then a hand pops out.  This case may also determine whether or not the provisions in the Omnibis Act, which are facially neutral, can be declared unilaterally discriminatory in all jurisdictions around the Country.

ROOT FOR MCCRORY if you view politics like a pro wrestling referee, where you can only get disqualified if you are caught red-handed with a steel chair.

ROOT FOR HARRIS if you view politics like a basketball referee, where being obtuse and substituting your judgment for someone else is the only way to keep things fair.

PREDICTION- 5-3 in support of HARRIS, with the decision on individual elements spread out among a collection of concurrence and dissents.

According to the Independent, the British SAS opposes allowing women in combat because they would make the army less effective. He cites a US Marine Corps study to back this up, despite the fact that the US Marine Corps allows women in combat, as long as they meet the standard. And, while not many can, apparently some can. And that’s reason enough.

One test involved in joining the infantry is completing an eight-mile march in less than two hours, while carrying 25 kg. The army’s research suggests less than 5 per cent of 7,000 female recruits would currently pass the physical tests.


via Former British Army commander says having women in the army ‘will cost lives on the battlefield’ | Home News | News | The Independent

WHAT HAPPENED:  The U.S. Patent and Trademark Office has a rule that prohibits trademarking any name that “disparages” any living or dead individual, belief or national symbol.  Two such entities that have had their trademarks rescinded by Federal Circuit Courts include THE SLANTS (the rock band shown above) and the WASHINGTON REDSKINS (image not shown as it is too offensive).

WHY IS THIS BEFORE ANY COURT:  The argument goes that the PTO’s denial of trademark protection violates the First Amendment.  For the Slants, their use of the term represents reclaiming offensive terminology.  For the Redskins, their use of the term represents sticking with racist words because it costs too much to change it.

WHAT WAS THE RULING:  The Slants won, and the Redskins lost.  The Redskins have now petitioned the Supreme Court to get priority review of their claim since they lost at the lower level.

WHAT ARE THE RAMIFICATIONS:  At the heart of it, the concern in this case is whether you can get priority use of an offensive term.  If that applies to you, you probably stink.

WILL THIS GO BEFORE THE SUPREME COURT:  More likely than not this will have some life at the Supreme Court next term.  There is a split in jurisdictions in regard to whether this rule is Constitutional or not, so that needs some clarity.  One interesting issue would be whether or not the Court makes a factual distinction between these two cases, or makes a rule that applies to all similar situations across the board.

WHAT HAPPENED:  Voters in Texas argue that their votes do not count as much as the votes of other Texas citizens who live in different districts.  The principal argument is that the method of determining districts, which counts total population instead of eligible voters, is unconstitutional.  The voters in this particular case argue that counting eligible voters is a more Constitutional way to determine districts.

WHY IS THIS BEFORE THE SUPREME COURT:  Previous cases have dealt with this issue, and while a test has been developed, it is generally recognized (or at least it should be) that voting districts are never going to perfect.  So the Court applies equal protection to these claims but has generally held that voting districts that are close enough and that are not created on the basis of discrimination are usually fine.

WHAT IS THE RULING:  This case is not yet decided.

WHAT ARE THE RAMIFICATIONS OF THIS DECISION:  If it is held that using total population violates the equal protection clause, then many states will have to go back to the drawing board to determine how to create and balance districts.  That could cause greater indecision on this topic, as there is no guarantee that calculating eligible voters will resolve the problem completely.  At very least, this would likely give States greater latitude to create their own voting districts, which can be good or bad depending on how you feel about certain States.

ROOT FOR EVENWELL IF: The principal of Constitutionality means more than the practical effectiveness of the status quo.

ROOT FOR ABBOTT IF: You’re the kind of person that is OK with things not being perfect as long as they are not fundamentally corrupt or broken.

Defendant was convicted of murder and sentenced to the death penalty.  Defendant appealed on the basis that the prosecutors engaged in racial discrimination by purposefully removing any non-white jurors from the trial.
The Equal Protection Doctrine extends to peremptory challenges when selecting juries.  By way of background, lawyers are entitled to strike jurors down for any reason after the Court removes jurors who show evidence of bias.   In Batson v Kentucky, the Court held that attorneys could not use their challenges to specifically remove people based on race; however, the test used by the Court to vet this out isn’t perfect and requires to the Court to (1) infer racial prejudice against the attorney, or (2) have the lawyer admit to being racist on the record.  This case falls somewhere in the middle.
This case is not yet decided.
It would be hard to see the Court revamping the Batson challenge all together, as this case really just decides whether or not the facts on the record amount to what the Court feels should result in a violation.  This case could instruct judges to take more deference when finding violations if a Batson challenge is found here, but that holding would have to trickle pretty far down the line to have any real effect.
Believe it is appropriate to make broad accusations of racism based on an hour’s worth of conduct.
Don’t see the irony in the fact that the most famous instance of jury deliberations is called TWELVE ANGRY MEN and based on the picture above could be called TWELVE MOSTLY WHITE GUYS WHO ARE ALSO ALL DRESSED IN WHITE.


Plaintiff is a white person who was rejected for admission to the University of Texas. Plaintiff believes that the rejection was due to an affirmative action program in which UT admits automatically admits any student who graduated in the top 10% of their class, and then considers race for the remaining applicants. Presumably, Plaintiff fit into the class of people where race was weighed in the application and was rejected.


This case is before the Supreme Court because the Supreme Court has a long history of making convoluted rules that seem well-intentioned in a vacuum, but are mostly just rhetoric that is enforced at the will of individual justices. Per previous cases in California and Michigan, the admissions program can consider race, but can’t be a quote. It also cannot have the purpose of remedying past discrimination, but it can be used to foster diversity.   Even though it shouldn’t be, this case is probably a crapshoot.


This case is not yet decided.


This case could have long-lasting effects on affirmative action in higher education. This program seems to be within the realm of acceptable programs under precedent, but this is a fairly flimsy set of precedent so we could have a whole new set of rules once this case gets handed down. It would not be surprising if decision, and future precedent, went strongly in one way or another.


Are (1)  an internet commentator or (2) between 5 and 4 justices on the Supreme Court.


Jeez, I don’t know, everyone else? I feel like most people who don’t like this are probably too scared to say it out loud out of fear sounding racist.


This week’s episode covers the Court’s most recent decisions regarding same sex marriage and lethal injection.  In both cases, Brett and Nazim discuss technical legal issues with the decisions and why it is not unreasonable to feel one way about the result but still question certain Constitutional elements in the legal reasoning. Brett and Nazim also ask deep, insightful questions about Bigfoot, which is the next big issue our Nation needs to tackle.

McGyvering Bigfoot.

WHAT HAPPENED: The Petitioners in this case are private same sex couples (“same sex marriage” for purposes of this summary) who seek the equal State-specific marriage rights as traditional couples of a man and a woman (“traditional couples” for purposes of this summary). The Respondents are States who want to refrain the term “marriage” only to couples with a man and a woman.

WHY IS THIS BEFORE THE SUPREME COURT: There are two key Constitutional arguments at play. The first is federalism, which is the concept that State governments have the freedom to craft their own laws independent of the federal government. Those who oppose same sex marriage being on equal footing as traditional marriage argue that forcing States to recognize both marriages as equal quells the State’s natural right to determine issues of marriage and family law. The second issue is equal protection under the 14th Amendment, which prevents State or Federal governments from treating people differently without just cause. Proponents of same sex marriage argue that there is no legitimate reason to treat the two types of marriage differently, nor is banning same sex marriage related to that purpose.

WHAT ARE THE RAMIFICATIONS OF THIS DECISION: Hellfire and brimstone if you were reading this twenty years ago, but in a practical sense, nothing that extreme, which is why the Petitioners will probably win. If you remove morality out of the equation, there are few consequences in permitting same sex marriage outside of the erosion between the link between religion and the government’s definition of marriage.   On the flip side, allowing same sex couples to be on equal footing would provide tax and estate credits, real estate benefits, and evidentiary privileges that are currently restricted to only traditional marriage.

WHAT WAS THE RULING: No ruling as of yet.

YOU SHOULD ROOT FOR SAME SEX MARRIAGE IF YOU: Like to see stodgy government institutions evolve against their will.

YOU SHOULD ROOT AGAINST SAME SEX MARRIAGE IF YOU: Just arrived in a time machine from twenty years ago. Btw, how crazy are things right now?!?! Isn’t weird how much we like football??

WHO WAS RIGHT: Brett and Nazim both believe that we are going to get a 6-3 decision, although Nazim covered his butt and said that it’s possible we get a 5-4.