Hively – Opening Arguments

June 22, 2020June 23, 2020

OA397: Explaining Bostock v. Clayton County

This episode breaks down exactly what happened in the Supreme Court’s surprising 6-3 decision in Bostock v. Clayton County holding that discrimination on the basis of sexual orientation and/or gender identity is discrimination “because of sex” under Title VII of the Civil Rights Act of 1964. It’s a great decision, we tell you why, and we give you some additional insights about Neil Gorsuch.

We begin by diving into the case! We tell you exactly what it does (and doesn’t) mean, figure out why this case took so long to get to a decision, and how it’s exactly the ruling we thought might have been possible ever since the 7th Circuit’s en banc decision in Hively v. Ivy Tech that we discussed way back in Episode 60.

In figuring that out, we discuss the narrow differences between “texualism” and “originalism,” even though this show tends to lump them together.

As part of the analysis, we take a look into Neil Gorsuch’s voting patterns to see if he’s a secret liberal. Hint: he isn’t.

After all that, it’s time for the #T3BE answer on Constitutional law. Can the university fire a professor for her political views? Listen and find out!

Patreon Bonuses

All patrons get a special behind-the-scenes deep dive into our amicus brief!

Appearances

None! But if you’d like to have either of us as a guest on your show, event, or in front of your group (virtually!), please drop us an email at openarguments@gmail.com.

Show Notes & Links

Go ahead and read the Court’s decision in Bostock v. Clayton County for yourself if you haven’t yet.
We discussed the 7th Circuit’s en banc decision in Hively v. Ivy Tech back in Episode 60, with specific emphasis on the Flaum & Ripple concurrence. We also discussed R.G. & G.R. Harris Funeral Homes in Episode 167.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter: @Openargs

-Facebook: https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed! @oawiki

-Remember to check out our YouTube Channel for Opening Arguments: The Briefs and other specials!

-And finally, remember that you can email us at openarguments@gmail.com!

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June 18, 2020June 19, 2020

OA396: Happy Juneteenth from the Supreme Court!

Today’s episode might have been titled “Andrew Was Really, Really Wrong,” as we break down this rather surprising week in the Supreme Court, including the Title VII cases, the Court’s refusal to grant cert on any gun case, and the DACA decision.

We begin with a quick Happy Juneteenth!

From there, we tackle the ways in which Andrew Was Wrong, starting with the Court’s decision in Bostock v. Clayton County, the consolidated case in which the Court has now held that Title VII of the Civil Rights Act of 1964 protects sexual orientation and gender identity. We promise you it isn’t a poison pill; it’s an unambiguously good decision.

After that, it’s time to talk about another thing Andrew was wrong about that’s kind of flown under the radar — the fact that the Supreme Court denied certiorari in all 10 of the pending gun cases, allowing some good rulings to stand and forestalling some bad new law on the Second Amendment.

Then, it’s time to break down the Court’s ruling in Regents of the University of California v. Trump, the case involving whether the Trump administration can unilaterally end DACA. The Court ruled they can’t — but this decision has a number of red flags in it that we discuss on the show.

After all that, it’s time for a brand-new #T3BE about constitutional law and whether a religious university can fire a professor for what she writes in an op-ed?

Patreon Bonuses

All patrons get a special behind-the-scenes deep dive into our amicus brief!

Appearances

None! But if you’d like to have either of us as a guest on your show, event, or in front of your group (virtually!), please drop us an email at openarguments@gmail.com.

Show Notes & Links

Make sure you check out the Opening Arguments Amicus Brief if you haven’t yet.
You can read the Court’s decisions in Bostock v. Clayton County, and Regents of the University of California v. Trump.
We discussed the importance of the Kolbe v. Hogan way back in Episode 47, and the Trump administration’s approach to DACA in Episode 102.
Finally, check out the Trump administration’s scorecard (6-79!) in administrative actions.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter: @Openargs

-Facebook: https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed! @oawiki

-Remember to check out our YouTube Channel for Opening Arguments: The Briefs and other specials!

-And finally, remember that you can email us at openarguments@gmail.com!

Download Link

April 23, 2018April 23, 2018

OA167: Neil Gorsuch, Secret Liberal?

Today’s episode tackles the recent (and shocking) Supreme Court decision in which Neil Gorsuch voted with the Court’s liberal justices to produce a very unusual 5-4 alignment. Is this a sign that Gorsuch isn’t the right-wing hack we all thought he was? Listen and find out! (Hint: No.)

After that, we break down the 6th Circuit’s recent opinion in EEOC v. R.G & G.R. Harris Funeral Homes, Inc., the first decision of its kind recognizing that discrimination on the basis of an individual who is transgender or transitioning violates Title VII of the Civil Rights Act of 1964.

After that, we answer a listener question about selecting a contingent fee attorney and discuss some of the actual pitfalls as well as misconceptions about those lawyers who take “no money down!”

Finally, we end with the answer to Thomas Takes the Bar Exam Question #72 about real property and the transfer of a deed. Don’t forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

We first warned you about Neil Gorusch way back in Episode 40, and we’re definitely not backing down now. If you want to check out his concurrence, you can click here to read the Supreme Court’s decision in Sessions v. Dimaya. And, as we discussed on the show, the should-have-been-straightforward holding of this case stems directly from the Court’s prior opinion in Johnson v. United States.
You can read the 6th Circuit’s recent opinion in EEOC v. R.G & G.R. Harris Funeral Homes, Inc., and for more coverage of Title VII, check out our discussion of Hively v. Ivy Tech from Episode 60, as well as our most recent update in Episode 152.

Support us on Patreon at: patreon.com/law

Facebook: https://www.facebook.com/openargs/

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com

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March 1, 2018March 2, 2018

OA152: Discrimination is for Dick’s?

In this rapid-response episode, Thomas and Andrew discuss the 2nd Circuit Court of Appeals’ en banc decision in Zarda v. Altitude Express, ruling that Title VII of the Civil Rights Act of 1964’s ban on discrimination on the basis of sex applies to sexual orientation as well. This is a follow-up to our prior discussions of this issue back in Episode 60 and Episode 91.

In the initial segment, Andrew tackles a question from Twitter about the James Damore lawsuit and employment law in general after our most recent coverage in Episode 150.

After the main discussion of Zarda, the guys discuss some of the fallout from the Parkland shooting, including decisions by Dick’s Sporting Goods and Wal-Mart to cease certain kinds of gun sales. Is this inappropriate age discrimination? Listen and find out!

Finally, we end with an all-new TTTBE #65 about vegan criminal law. You won’t want to miss it! Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We’ll release the answer on next Tuesday’s episode along with our favorite entry!