Years back, I purchased Peter Iron's May It Please It Court collection, which for the first time to a wide audience provided excerpts of oral arguments of major Supreme Court cases with limited commentary and a book with transcripts and discussing the cases with excerpts (like a casebook). There was some problems with the editing (including wrongly citing who was talking, which happens at Oyez.com too in older cases), but the overall idea was something of a revolutionary moment. Irons in fact broke the rules (only private research and teaching) in the process though they changed. In time, we had complete arguments via Oyez.com
It took until October 2010 for the Supreme Court to provide audio on their own website. Now, we have a practice of having Friday release of audio (some are pushing for same day audio, I assume since it would be timely for news purposes, but especially with same day transcript, this doesn't to me seem that big of a deal -- still, live audio ala C-SPAN easily can be done and the reasons against it are also hard to justify). The push these days is to provide video (C-SPAN plays audio for select cases and shows pictures of justices/advocates; John Oliver encouraged use of a "dog court" his staff set up and some cases can be found online there), especially since many jurisdictions here and abroad (know of the UK and Canada) have them.
We don't have opinion announcement audio though for many cases -- and all of them basically in more recent years -- you can find that at Oyez.com too. These are the summaries on opinion days that announce the judgment, vote breakdown and provide a summary of the result. In a few cases, where it really matters to a justice, you also might have a dissent from the bench. It is an informative and ceremonial act that clearly has some value in the minds of the justices since they could simply post the results without doing it to the small audience in the courtroom. These rarely come up when the issue of audio/video arises and it would be a good next step. I saw one legal journalist say justices were concerned about the non-official nature of opinion announcements but they handle headnotes.
They do not say ahead a time which opinions will be handed down though do announce (and one can call an information number to get expected days here) when "opinion days" will occur. There are also scheduled days, with release timed a half hour before oral argument (or 9:30 generally), for orders. Random orders also might be released as necessary such as last minute death penalty appeals. As with audio/transcripts of opinion announcements (which pop up on Oyez.com eventually), use of video for these non-oral argument duties would be logical. The concern about advocates playing for the justices or selective clips or whatever are even less relevant in such cases. And, there is an overall ceremonial nature to the procedures anyways.
A final thing to toss in here is the addition of blogs and Twitter. SCOTUSBlog has a popular feature now that provides a "live blog" on major opinion days late in the term, first answering questions from readers and then announcing things as they come. We also see this on Twitter, with a set number of law reporters providing summaries and updates. And, this is true after oral arguments too. Finally, there is a "view from the Court" feature, a sort of color commentary, beyond individual discussions of oral arguments to give a "you are there" view of things. Of course, if we had video, we could get a better sense of this ourselves.
We are dealing with a somewhat limited group here, surely, but C-SPAN expanded the public at large viewing government in action. The same applies to the Supreme Court (and in a much more limited way lower courts too) and now we have High School SCOTUS (the lead girl there recently met Justice Kagan). A few justices in particular (and whatever Gorsuch is) feel a special concern about educating the public about the Court. It would help here if they did more to let the outside view them. For instance, why not post a view educational videos, including an "inside look," on the website? Or video of the various Supreme Court education society talks that one or more justices often go too. Unclear.
===
Anyway, the Supreme Court has some major cases this term as seen by the first set alone. As usual, there are lesser cases though even one involving the contours of the insanity defense (listening to the oral argument, I admit it somewhat went over my head) is of some note. You can go to the SCOTUS website (which has docket pages etc. though it probably can be set up better), Oyez.com (which allows you to follow along with the transcript, pictures of the justices and gives a larger summary of the case) and SCOTUSBlog to get audio and further material.
Oral argument provides each side thirty minutes (sometimes it is split as in some of the cases this week between let's say the federal government and a state party) to make their case as well as the justices a chance to engage with them and often really each other. A new rule this term, which is sensible, gives the person two minutes to summarize (one minute in a split case) their position before being questioned. Often in the past, e.g., a justice right away went after an advocate before they could even say much about their position at all. Of course, there is a lot of written briefing. But, and I take their word for it, I have seen multiple justices (including Justice Harlan II) say oral argument helps them. It is also a public exercise, which has its own value. In early days, extended oral argument was a sort of public entertainment but even today there is a bit of that. Plus, it has a civics function.* Video could help here, especially since seeing helps the process especially in the modern age.
[The two minute rule by various accounts got good marks. In one case, Gorsuch couldn't help himself, and before the time was up made a joke about something an advocate said in his folksy fashion. Asshole. The new rules also makes it easier to set aside five minutes for rebuttal.]
Somewhat like early years, these days, there are a small set of repeat players in these arguments (such as Jeffrey Fisher, who argued for unanimous juries), which provides some familiarity and special skill. The ability to go as far as easily cite page and verse is akin to some actor remembering a lot of lines in a play. The oral arguments are still a mixed bag, especially with so many questions that break up the ability of advocates to totally make their case. The arguments often are interesting though many of them are more technical affairs (Congress on C-SPAN also is often rather tedious). Also, they also leave a bit of a lack.
Take the unanimous jury case. An interesting thing that arose there was not just that the UK allows non-unanimous juries but that Puerto Rico does. I am aware of Oregon, the only state that now allows them. (The case involves Louisiana, which recently changed its laws, but the new rule is not retroactive.) The Supreme Court, as seen in a recent case involving the Fines Clause (which was not expressly incorporated though dicta suggested it was), basically applies the Bill of Rights the same for the states and the federal government. The Third Amendment never came up, really, but basically every other provision is incorporated, applied to the states. For instance, the Second Amendment eventually was in 2007.
But, juries are treated differently. Both sides, and this confused Kagan, basically assumed on this question you had to treat them the same. There is an early 1970s case, however, where the swing vote (Powell) did not. Four justices said neither states or the federal government required unanimous juries (at least in non-capital cases). Four justices did. Powell said you did for the federal government. Even the state here seemed wary to rest on his vote. It made the harder case that in both cases you need not have unanimous juries. Finally, when pressed, the advocate said she was surely open to respecting the precedential effect of Powell's vote. Kagan, e.g., tried to evenhandedly respect precedent, especially after Alito rather snarkily cited the liberals calling out the conservatives for not in a few cases. This in this case, of course, would help enforce a more conservative rule. Me? I would be careful here, since liberals one day might want to get rid of Roberts Courts precedents.
Kavanaugh flagged the possibility that the states chose not to use unanimous juries for reasons that rubbed of racial discrimination. In general, it is cited as an important way not to crowd out minority viewpoints, which need not be only racial. One thing I would add here that didn't come up (though briefly was in the original oral arguments when the rule was first set that can be found at Oyez.com) is that it could help if the jury had to deliberate for an extended period of time. So, perhaps, a 10-2 vote can be allowed if deliberation occurred for three days. Anyway, the race discrimination angle can make it easier to overturn here, but what about Puerto Rico? The wrinkle there is an old and in this context one would think long disfavored two tier approach treating territories differently (Insular Cases). Logically, that would be the next domino.
I think a good case can be made that unanimous juries should be recognized as constitutionally required, especially if forty-nine of fifty states have them. We then have the issue of what to do with the tens of thousands of people in prison under the system, there being only limited records of how the jurors voted. The number seems artificial -- only a small number must actually have had jury trials with plea bargains and all. That was one thing that was not flagged. There are also existing rules regarding "new rules" here that apply newly founded constitutional rules to other cases in only a limited fashion. To be continued.
Anyway, I wish more would have been discussed regarding the Supreme Court treating state discretion over juries differently. It does not only apply here, after all -- what about grand juries? That provision of the Fifth Amendment was never incorporated. Need it be? Why not? Maybe, the nature of the jury is different, but it shows how states have more discretion. The Seventh Amendment also has not been incorporated, giving states more discretion regarding civil juries. And, the number of jurors need not be twelve. Kagan did touch about this flexibility, but it was not covered much at all in the argument.
===
The big argument involved employment discrimination by sexual orientation or transgender status. Pamela Karlan, who lots of law professors et. al. stanned as the kids say, handled the first (two cases) and David Cole (a big civil liberty figure too) dealt with the second. One thing that stood out here was that you would not really know at times that for years now many lower courts have recognized that "sex" discrimination per the federal law in question covered this sort of thing. This is so even if when the law was first passed and applied it was not understood to so include. Cole flagged this -- the details here aren't totally novel.
In the same sex marriage cases, various people wondered why the Supreme Court did not cite it as sex discrimination. On a basic level, it is, especially if we look to why people discriminate here (the term can be a good thing -- discriminating tastes -- but here means "invidiously" so) and find it distasteful. There is an ancient belief that there are certain sexual roles for men and women; homosexuality appears to violate them. In fact, in ancient times, there was a power dynamic involved -- the "receiver" of male sex here was basically in the weaker or "feminine" position.
But, sexual orientation does in a general sense seem to be a different category and laws so separate. Thus, there is a whole "gay community" and so forth. The term "gay marriage" really is a misnomer since one need not be gay to marry a person of the same sex. But, the term is readily used since there tends to be a general overlap. So, there is something of a facial credibility to the argument against here (harder for transgender though, probably). This is even so if we cite an earlier case where men treated another man as if he was gay and was held to be a victim of "sex" discrimination. In an opinion by Scalia (leading Gorsuch to be the possible swing vote though he also was concerned about the major social upheaval with so ruling ... though it's unclear if any really would occur ... putting aside that his alleged legal philosophy involving textual meaning shouldn't really take that into consideration). That is still a "sex" role issue.
The logic of the case however still holds. A person who is discriminated because of sexual orientation would not be if they had the "right" sexual orientation. The difference boils down to sex. It already is the case that there is clear cases of overlap such as people deemed not properly masculine or feminine deemed homosexual. [Pamela Karlan opened her argument in a striking way by citing epithets in such cases such as a "fag."] As with a broad view of sexual harassment only arising in the 1980s, yes, early cases did not apply the legislative text in that fashion. Separate laws to specifically address the new areas very well might be sensible but the old laws still would apply.
Thus, it is acceptable to argue "sex" and "sexual orientation" don't completely overlap and still say the laws apply. The supporters of the employers here rely on the differences. But, you can grant that and still say the laws apply. There is also an appeal to letting the popular branches address the issue, but there is a certain question begging issue there if the original law applies. The fact a law has some unexpected consequences does not change that. Anyway, the people have fought over these issues and the changes there does -- Justice Breyer flagged this in the second argument -- does color how we today should apply it.
The application to sexual orientation and transgender will raise some different issues, but so did the broad usage of sexual harassment rules. Sexual harassment rules complicate setting the contours of proper workplace comportment in ways that at times raises even free speech concerns. The overlap between "proper" sex roles and these two categories also suggests a different in degree not kind in many cases. As would other factors. Take the bathroom horrible. As a matter of common sense, someone who looks like one sex [if with different genitalia] would be out of place in the bathroom of the other sex.
But, this is the valid application of the term. In time, a full understanding of equal protection as a constitutional measure included women. The people who originally wrote and ratified at best only thought women would be protected as a class in a narrow way. All the same, the overall meaning and purpose of the text does apply to them. If such a thing can apply to a constitutional text that is so much harder to amend, why not statutory text which the legislature can later address if they think the courts decided wrongly? As to statutory sexual orientation protections, a blatant case is poll taxes -- we have an amendment limited to the federal government but the Supreme Court soon used equal protection to apply it to states. Anyway, the GLBT legislation on the federal level in the works is broader.
Pamela Karlan did not say much of that sort of thing, focusing more on arguing that the text requires a wide reach as applied. There is no "change" going on here though now retired Judge Posner in his fashion acted as a truth-teller and basically said it was but still was okay. This is realistically a good idea (aim to say you aren't asking for much), especially with this Court. Still, it's okay to express the whole story. Over time, statutory text might have content that can change some as the times change, and this is recognized as a sort of assumed rule without additional comment. RBG noted this in a brief concurrence last term that to me seemed a sort of "Easter Egg" or something in reference to these cases that were due to come up at some point.
Again, the questions (including bathroom parade of horribles) aren't really novel. Lower courts in many circuits applied it to sex and transgender, plus various states and localities have GLBT protections in place that handle that sort of thing. The EEOC (the SG going against them) also so held: "Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex." When the SG said the text of the law clearly went the other way, maybe this should have been noted. The oral argument at times implied a novelty that was not really there.
(One of the gay discrimination cases arose out of the 11CA, which relied on 1970s precedents in that circuit to hold against the "sex" discrimination claim. It would take en banc reversal or a clear Supreme Court reversal to get around that. This makes things complicated, but doesn't at the end of the day make relying on outdated cases, which were thinly argued in the first place [see, e.g., an analyst on Gay USA this week.] that sensible.)
One guards against predictions but the unanimous jury case after oral argument is a bit less of a slamdunk than I previously thought, but good chance the defendant will win. The GLBT cases are tricky too though a case can be made that at least a 5-4 majority supporting the employees is possible though the rub will be the details. I saw some negativity though. Shall see. Let's have clear strong federal protections regardless.
===
* The early practice was for justices to "ride circuit," there not a separate court of appeals. The lower federal courts and especially the justices (including "jury charges" that at times were printed in newspapers) brought the federal government to the people themselves.
Other than post offices, in the early years, people had little chance to interact with the federal government directly. They often still don't. The jury charges repeatedly included some republican rhetoric mixed in such as the purpose of government or the like. Some judges still do a little of that, jury service opening up a chance to serve as citizens in an official capacity.
It took until October 2010 for the Supreme Court to provide audio on their own website. Now, we have a practice of having Friday release of audio (some are pushing for same day audio, I assume since it would be timely for news purposes, but especially with same day transcript, this doesn't to me seem that big of a deal -- still, live audio ala C-SPAN easily can be done and the reasons against it are also hard to justify). The push these days is to provide video (C-SPAN plays audio for select cases and shows pictures of justices/advocates; John Oliver encouraged use of a "dog court" his staff set up and some cases can be found online there), especially since many jurisdictions here and abroad (know of the UK and Canada) have them.
We don't have opinion announcement audio though for many cases -- and all of them basically in more recent years -- you can find that at Oyez.com too. These are the summaries on opinion days that announce the judgment, vote breakdown and provide a summary of the result. In a few cases, where it really matters to a justice, you also might have a dissent from the bench. It is an informative and ceremonial act that clearly has some value in the minds of the justices since they could simply post the results without doing it to the small audience in the courtroom. These rarely come up when the issue of audio/video arises and it would be a good next step. I saw one legal journalist say justices were concerned about the non-official nature of opinion announcements but they handle headnotes.
They do not say ahead a time which opinions will be handed down though do announce (and one can call an information number to get expected days here) when "opinion days" will occur. There are also scheduled days, with release timed a half hour before oral argument (or 9:30 generally), for orders. Random orders also might be released as necessary such as last minute death penalty appeals. As with audio/transcripts of opinion announcements (which pop up on Oyez.com eventually), use of video for these non-oral argument duties would be logical. The concern about advocates playing for the justices or selective clips or whatever are even less relevant in such cases. And, there is an overall ceremonial nature to the procedures anyways.
A final thing to toss in here is the addition of blogs and Twitter. SCOTUSBlog has a popular feature now that provides a "live blog" on major opinion days late in the term, first answering questions from readers and then announcing things as they come. We also see this on Twitter, with a set number of law reporters providing summaries and updates. And, this is true after oral arguments too. Finally, there is a "view from the Court" feature, a sort of color commentary, beyond individual discussions of oral arguments to give a "you are there" view of things. Of course, if we had video, we could get a better sense of this ourselves.
We are dealing with a somewhat limited group here, surely, but C-SPAN expanded the public at large viewing government in action. The same applies to the Supreme Court (and in a much more limited way lower courts too) and now we have High School SCOTUS (the lead girl there recently met Justice Kagan). A few justices in particular (and whatever Gorsuch is) feel a special concern about educating the public about the Court. It would help here if they did more to let the outside view them. For instance, why not post a view educational videos, including an "inside look," on the website? Or video of the various Supreme Court education society talks that one or more justices often go too. Unclear.
===
Anyway, the Supreme Court has some major cases this term as seen by the first set alone. As usual, there are lesser cases though even one involving the contours of the insanity defense (listening to the oral argument, I admit it somewhat went over my head) is of some note. You can go to the SCOTUS website (which has docket pages etc. though it probably can be set up better), Oyez.com (which allows you to follow along with the transcript, pictures of the justices and gives a larger summary of the case) and SCOTUSBlog to get audio and further material.
Oral argument provides each side thirty minutes (sometimes it is split as in some of the cases this week between let's say the federal government and a state party) to make their case as well as the justices a chance to engage with them and often really each other. A new rule this term, which is sensible, gives the person two minutes to summarize (one minute in a split case) their position before being questioned. Often in the past, e.g., a justice right away went after an advocate before they could even say much about their position at all. Of course, there is a lot of written briefing. But, and I take their word for it, I have seen multiple justices (including Justice Harlan II) say oral argument helps them. It is also a public exercise, which has its own value. In early days, extended oral argument was a sort of public entertainment but even today there is a bit of that. Plus, it has a civics function.* Video could help here, especially since seeing helps the process especially in the modern age.
[The two minute rule by various accounts got good marks. In one case, Gorsuch couldn't help himself, and before the time was up made a joke about something an advocate said in his folksy fashion. Asshole. The new rules also makes it easier to set aside five minutes for rebuttal.]
Somewhat like early years, these days, there are a small set of repeat players in these arguments (such as Jeffrey Fisher, who argued for unanimous juries), which provides some familiarity and special skill. The ability to go as far as easily cite page and verse is akin to some actor remembering a lot of lines in a play. The oral arguments are still a mixed bag, especially with so many questions that break up the ability of advocates to totally make their case. The arguments often are interesting though many of them are more technical affairs (Congress on C-SPAN also is often rather tedious). Also, they also leave a bit of a lack.
Take the unanimous jury case. An interesting thing that arose there was not just that the UK allows non-unanimous juries but that Puerto Rico does. I am aware of Oregon, the only state that now allows them. (The case involves Louisiana, which recently changed its laws, but the new rule is not retroactive.) The Supreme Court, as seen in a recent case involving the Fines Clause (which was not expressly incorporated though dicta suggested it was), basically applies the Bill of Rights the same for the states and the federal government. The Third Amendment never came up, really, but basically every other provision is incorporated, applied to the states. For instance, the Second Amendment eventually was in 2007.
But, juries are treated differently. Both sides, and this confused Kagan, basically assumed on this question you had to treat them the same. There is an early 1970s case, however, where the swing vote (Powell) did not. Four justices said neither states or the federal government required unanimous juries (at least in non-capital cases). Four justices did. Powell said you did for the federal government. Even the state here seemed wary to rest on his vote. It made the harder case that in both cases you need not have unanimous juries. Finally, when pressed, the advocate said she was surely open to respecting the precedential effect of Powell's vote. Kagan, e.g., tried to evenhandedly respect precedent, especially after Alito rather snarkily cited the liberals calling out the conservatives for not in a few cases. This in this case, of course, would help enforce a more conservative rule. Me? I would be careful here, since liberals one day might want to get rid of Roberts Courts precedents.
Kavanaugh flagged the possibility that the states chose not to use unanimous juries for reasons that rubbed of racial discrimination. In general, it is cited as an important way not to crowd out minority viewpoints, which need not be only racial. One thing I would add here that didn't come up (though briefly was in the original oral arguments when the rule was first set that can be found at Oyez.com) is that it could help if the jury had to deliberate for an extended period of time. So, perhaps, a 10-2 vote can be allowed if deliberation occurred for three days. Anyway, the race discrimination angle can make it easier to overturn here, but what about Puerto Rico? The wrinkle there is an old and in this context one would think long disfavored two tier approach treating territories differently (Insular Cases). Logically, that would be the next domino.
I think a good case can be made that unanimous juries should be recognized as constitutionally required, especially if forty-nine of fifty states have them. We then have the issue of what to do with the tens of thousands of people in prison under the system, there being only limited records of how the jurors voted. The number seems artificial -- only a small number must actually have had jury trials with plea bargains and all. That was one thing that was not flagged. There are also existing rules regarding "new rules" here that apply newly founded constitutional rules to other cases in only a limited fashion. To be continued.
Anyway, I wish more would have been discussed regarding the Supreme Court treating state discretion over juries differently. It does not only apply here, after all -- what about grand juries? That provision of the Fifth Amendment was never incorporated. Need it be? Why not? Maybe, the nature of the jury is different, but it shows how states have more discretion. The Seventh Amendment also has not been incorporated, giving states more discretion regarding civil juries. And, the number of jurors need not be twelve. Kagan did touch about this flexibility, but it was not covered much at all in the argument.
===
The big argument involved employment discrimination by sexual orientation or transgender status. Pamela Karlan, who lots of law professors et. al. stanned as the kids say, handled the first (two cases) and David Cole (a big civil liberty figure too) dealt with the second. One thing that stood out here was that you would not really know at times that for years now many lower courts have recognized that "sex" discrimination per the federal law in question covered this sort of thing. This is so even if when the law was first passed and applied it was not understood to so include. Cole flagged this -- the details here aren't totally novel.
In the same sex marriage cases, various people wondered why the Supreme Court did not cite it as sex discrimination. On a basic level, it is, especially if we look to why people discriminate here (the term can be a good thing -- discriminating tastes -- but here means "invidiously" so) and find it distasteful. There is an ancient belief that there are certain sexual roles for men and women; homosexuality appears to violate them. In fact, in ancient times, there was a power dynamic involved -- the "receiver" of male sex here was basically in the weaker or "feminine" position.
But, sexual orientation does in a general sense seem to be a different category and laws so separate. Thus, there is a whole "gay community" and so forth. The term "gay marriage" really is a misnomer since one need not be gay to marry a person of the same sex. But, the term is readily used since there tends to be a general overlap. So, there is something of a facial credibility to the argument against here (harder for transgender though, probably). This is even so if we cite an earlier case where men treated another man as if he was gay and was held to be a victim of "sex" discrimination. In an opinion by Scalia (leading Gorsuch to be the possible swing vote though he also was concerned about the major social upheaval with so ruling ... though it's unclear if any really would occur ... putting aside that his alleged legal philosophy involving textual meaning shouldn't really take that into consideration). That is still a "sex" role issue.
The logic of the case however still holds. A person who is discriminated because of sexual orientation would not be if they had the "right" sexual orientation. The difference boils down to sex. It already is the case that there is clear cases of overlap such as people deemed not properly masculine or feminine deemed homosexual. [Pamela Karlan opened her argument in a striking way by citing epithets in such cases such as a "fag."] As with a broad view of sexual harassment only arising in the 1980s, yes, early cases did not apply the legislative text in that fashion. Separate laws to specifically address the new areas very well might be sensible but the old laws still would apply.
Thus, it is acceptable to argue "sex" and "sexual orientation" don't completely overlap and still say the laws apply. The supporters of the employers here rely on the differences. But, you can grant that and still say the laws apply. There is also an appeal to letting the popular branches address the issue, but there is a certain question begging issue there if the original law applies. The fact a law has some unexpected consequences does not change that. Anyway, the people have fought over these issues and the changes there does -- Justice Breyer flagged this in the second argument -- does color how we today should apply it.
The application to sexual orientation and transgender will raise some different issues, but so did the broad usage of sexual harassment rules. Sexual harassment rules complicate setting the contours of proper workplace comportment in ways that at times raises even free speech concerns. The overlap between "proper" sex roles and these two categories also suggests a different in degree not kind in many cases. As would other factors. Take the bathroom horrible. As a matter of common sense, someone who looks like one sex [if with different genitalia] would be out of place in the bathroom of the other sex.
But, this is the valid application of the term. In time, a full understanding of equal protection as a constitutional measure included women. The people who originally wrote and ratified at best only thought women would be protected as a class in a narrow way. All the same, the overall meaning and purpose of the text does apply to them. If such a thing can apply to a constitutional text that is so much harder to amend, why not statutory text which the legislature can later address if they think the courts decided wrongly? As to statutory sexual orientation protections, a blatant case is poll taxes -- we have an amendment limited to the federal government but the Supreme Court soon used equal protection to apply it to states. Anyway, the GLBT legislation on the federal level in the works is broader.
Pamela Karlan did not say much of that sort of thing, focusing more on arguing that the text requires a wide reach as applied. There is no "change" going on here though now retired Judge Posner in his fashion acted as a truth-teller and basically said it was but still was okay. This is realistically a good idea (aim to say you aren't asking for much), especially with this Court. Still, it's okay to express the whole story. Over time, statutory text might have content that can change some as the times change, and this is recognized as a sort of assumed rule without additional comment. RBG noted this in a brief concurrence last term that to me seemed a sort of "Easter Egg" or something in reference to these cases that were due to come up at some point.
Again, the questions (including bathroom parade of horribles) aren't really novel. Lower courts in many circuits applied it to sex and transgender, plus various states and localities have GLBT protections in place that handle that sort of thing. The EEOC (the SG going against them) also so held: "Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex." When the SG said the text of the law clearly went the other way, maybe this should have been noted. The oral argument at times implied a novelty that was not really there.
(One of the gay discrimination cases arose out of the 11CA, which relied on 1970s precedents in that circuit to hold against the "sex" discrimination claim. It would take en banc reversal or a clear Supreme Court reversal to get around that. This makes things complicated, but doesn't at the end of the day make relying on outdated cases, which were thinly argued in the first place [see, e.g., an analyst on Gay USA this week.] that sensible.)
One guards against predictions but the unanimous jury case after oral argument is a bit less of a slamdunk than I previously thought, but good chance the defendant will win. The GLBT cases are tricky too though a case can be made that at least a 5-4 majority supporting the employees is possible though the rub will be the details. I saw some negativity though. Shall see. Let's have clear strong federal protections regardless.
===
* The early practice was for justices to "ride circuit," there not a separate court of appeals. The lower federal courts and especially the justices (including "jury charges" that at times were printed in newspapers) brought the federal government to the people themselves.
Other than post offices, in the early years, people had little chance to interact with the federal government directly. They often still don't. The jury charges repeatedly included some republican rhetoric mixed in such as the purpose of government or the like. Some judges still do a little of that, jury service opening up a chance to serve as citizens in an official capacity.
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