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U.S. Supreme Court

‘Radical agreement’ could lead to Supreme Court victory for reverse-discrimination plaintiff

By Debra Cassens Weiss

February 27, 2025, 12:39 pm CST

The U.S. Supreme Court appeared ready to rule Wednesday that reverse-discrimination plaintiffs do not have to make a greater showing than minorities when suing for job bias.

The high court appeared to side with plaintiff Marlean Ames, who alleges that two less-qualified gay workers were chosen over her to fill positions with the Ohio Department of Youth Services, report SCOTUSblog, Reuters, Bloomberg Law, Law.com, the New York Times, NBC News and the Washington Post.

Ames is a straight white woman who lost out on a promotion to a gay woman and then was demoted from her current position, which was filled by a gay man.

At issue is whether members of majority groups suing for discrimination under Title VII of the Civil Rights Act must present special evidence of “background circumstances” to support their claims.

The 6th U.S. Circuit Court of Appeals at Cincinnati tossed Ames’ bias claim in December 2023 because she had not shown “background circumstances.” Such a showing is usually made if the person making the alleged discriminatory decision is a member of the minority group at issue or if there is statistical evidence showing a pattern of discrimination against the majority group, the 6th Circuit said. Ames did not supply that evidence.

The 6th Circuit is one of five federal appeals courts that have adopted the “background circumstances” rule, according to the cert petition. Two others have explicitly rejected it, and five others do not apply it.

During oral arguments Wednesday, Justice Neil Gorsuch observed “radical agreement” that the same test applies to all plaintiffs under Title VII. The plaintiff and her employer were in agreement, as were most, if not all, of the justices, according to SCOTUSblog.

The New York Times reported that the Supreme Court “seemed likely to issue a brief and perhaps unanimous decision” in favor of Ames.

Justice Brett Kavanaugh suggested brevity when he asked Ames’ lawyer if all he wants is “a really short opinion that says discrimination on the basis of sexual orientation, whether it’s because you’re gay or because you’re straight, is prohibited, and the rules are the same.”

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3. 5th Circuit judge’s remarks spur talk of…

Judiciary

5th Circuit judge’s remarks spur talk of Supreme Court audition

By Debra Cassens Weiss

December 19, 2024, 3:35 pm CST

Public remarks by a conservative federal appeals judge have “rekindled talk of a possible audition for the Supreme Court,” according to a story by Bloomberg Law.

Judge James C. Ho of the 5th U.S. Circuit Court of Appeals at New Orleans is already known for boycotting the hiring of clerks from law schools that he thinks have mishandled student protests or stifled conservative views.

Now, he is getting attention for comments about birthright citizenship, people who think that conservative viewpoints are “garbage,” and his appearance on a conservative podcast.

Bloomberg Law highlighted these remarks:

  • Ho appeared to embrace an argument against birthright citizenship, enshrined in the 14th Amendment, in an interview with Josh Blackman, a professor at the South Texas College of Law in Houston, published at the Volokh Conspiracy. “Birthright citizenship obviously doesn’t apply in case of war or invasion,” Ho said as he referred to a prior case in which Texas argued that illegal immigration qualifies as an invasion under the Constitution. “No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship.”

  • On a panel for the conservative Federalist Society, Ho took “a swipe at critics of the Supreme Court,” according to Bloomberg Law. “Too many academics regard the views of half the country as garbage,” Ho said. He also may have been referencing a comment by President Joe Biden, who appeared to call supporters of President-elect Donald Trump “garbage.”

  • In an interview with the conservative Advisory Opinions podcast, Ho said he agreed to appear to counter negative remarks by some judges. He appeared to be referring to criticism by Judge Amul Thapar of the 6th Circuit at Cincinnati, who said he doesn’t think that law grads should be boycotted in clerk hiring to punish their schools.

At least one person doesn’t think that Ho’s remarks are intended to increase his chances for a Supreme Court nomination.

Brad Hubbard, a partner at Gibson, Dunn & Crutcher and one of Ho’s former law clerks, told Bloomberg Law that Dallas-based Ho “loves his family and loathes D.C.”

Ho’s wife is a Gibson Dunn partner who has argued before the Supreme Court, which could lead to conflicts issues if Ho becomes a justice.

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3. 2 federal judges have changed their minds…

Judiciary

2 federal judges have changed their minds about senior status; will 2 appeals judges follow suit?

By Debra Cassens Weiss

December 5, 2024, 10:02 am CST

After President-elect Donald Trump won a second term in the White House, two Democratic-appointed federal judges announced that they no longer plan to take senior status.

The reversal means that there will not be two additional vacancies for Trump to fill when he takes office, report Reuters, Law360, Law.com and CNN.

The two judges are:

  • U.S. District Judge Max O. Cogburn Jr. of the Western District of North Carolina, an appointee of former President Barack Obama. Cogburn had announced his plans to take senior status after his successor was confirmed in 2022, but Biden did not choose a replacement. Any nominee would have needed the approval of North Carolina’s two Republican U.S. senators under a U.S. Senate custom of blue-slip approval.

  • U.S. District Judge Algenon L. Marbley of the Southern District of Ohio, an appointee of former President Bill Clinton. Marbley had notified Biden of plans to retire in October 2023, according to the Columbus Dispatch and Reuters. Biden had not nominated a replacement, which would have needed the support of Vice President-elect J.D. Vance, who’s currently one of Ohio’s two senators. The other senator is Democratic Sen. Sherrod Brown.

Judges can take senior status, which allows them to reduce their caseload, if they are older than age 65 and have been on the bench at least 15 years, Reuters explains.

The judges’ decisions come amid a deal between Democrats and Republicans in which the Senate won’t hold votes on four of Biden’s appeals court nominees while advancing the president’s district court nominees, according to the Associated Press and Bloomberg Law.

The deal was made after Republicans used “stalling tactics” to hold up judicial confirmations, according to Bloomberg Law.

The deal gives Republicans a chance to fill seats on the 3rd U.S. Circuit Court of Appeals at Philadelphia and the 1st Circuit at Boston. The two other appellate judgeships are not yet officially open because the judges made their transition to senior status contingent on confirmation of a successor.

Those two judges are Judge Jane Branstetter Stranch of the 6th Circuit at Cincinnati and Judge James Andrew Wynn of the 4th Circuit at Richmond, Virginia.

Republican Senate Minority Leader Mitch McConnell of Kentucky is worried about the possibility, according to CNN’s reporting on his comments.

“Never before has a circuit judge unretired after a presidential election,” McConnell said. “It’s literally unprecedented. And to create such a precedent would fly in the face of a rare bipartisan compromise on the disposition of these vacancies.”

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3. Opioid suits can’t be based on nuisance law…

Tort Law

Opioid suits can’t be based on nuisance law in Ohio, top state court rules in $650M win for pharmacies

By Debra Cassens Weiss

December 12, 2024, 3:23 pm CST

A decision by the Ohio Supreme Court on the state’s product-liability law is good news for three national pharmaceutical chains ordered to pay more than $650 million for contributing to the opioid epidemic.

The state supreme court ruled Dec. 10 that the Ohio Product Liability Act eliminated all common-law nuisance claims in connection with the sale of products, Court News Ohio reports. The state supreme court ruled after the 6th U.S. Circuit Court of Appeals at Cincinnati asked for a ruling on the impact of the state law as amended.

The 6th Circuit certified the question to the Ohio Supreme Court in an appeal of a $650.6 million judgment against CVS, Walmart and Walgreens. The lawsuit was among several bellwether cases used to test claims and defenses chosen from about 3,000 opioid suits consolidated in the U.S. District Court for the Northern District of Ohio.

Two Ohio counties had contended that the damages awarded were for abatement of the nuisance, rather than for compensatory damages. As a result, the law didn’t bar their claims, they argued.

The Ohio Supreme Court ruled, however, that the type of relief requested is immaterial under the law as written. The state supreme court also rejected the counties’ claim that the nuisance suit didn’t meet the definition of a product-liability claim because there were no allegations of a product defect.

The three drug companies praised the ruling, Bloomberg Law reports. Walgreens said in a statement the decision “allows us to put this litigation behind us so we can continue focusing on the health and well-being of our patients, customers and team members in northern Ohio and across the country.”

Peter H. Weinberger represented the plaintiffs—Lake County and Trumbull County in Ohio. He told Bloomberg Law that the decision “will have a devastating impact on communities and their ability to police corporate misconduct.”

Nationwide, he said, opioid settlements with drugmakers, distributors and pharmacies total nearly $60 billion. The Ohio Supreme Court’s decision “undermines the very legal basis that drove this result,” Weinberger told Bloomberg Law.

The Ohio Supreme Court is the second top state court to rule that public-nuisance laws cannot be used in opioid suits.

The Oklahoma Supreme Court held in November 2021 that Johnson & Johnson’s opioid marketing did not create a public nuisance because it concerned the sale of a lawful product. The decision overturned a $465 million verdict.

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3. Who may be on Trump’s Supreme Court short…

U.S. Supreme Court

Who may be on Trump’s Supreme Court short list? Senate win aids judicial picks

By Debra Cassens Weiss

November 6, 2024, 3:12 pm CST

President-elect Donald Trump could get a chance to appoint two U.S. Supreme Court justices if Justice Clarence Thomas, 76, and Justice Samuel Alito, 74, decide to retire.

“With two more appointees,” Law360 reports, “Trump could single-handedly cement the Supreme Court’s conservative supermajority for decades to come.”

These judges and lawyers are potential nominees, according to Law360, an op-ed in the New York Times by the editor of a liberal blog, Fox News and a Bloomberg Law story on potential Asian American and Pacific Islander picks.

  • Judge Stuart Kyle Duncan, the 5th U.S. Circuit Court of Appeals in New Orleans. He is the former general counsel for the Becket Fund for Religious Liberty. He was in the news in January 2020 for an opinion in which he refused to refer to a transgender inmate by her preferred female pronouns. (Law360, Fox News, the New York Times)

  • Judge Andrew S. Oldham, the 5th Circuit at New Orleans. He is former general counsel for Republican Texas Gov. Greg Abbot. (Law360, Fox News)

  • Judge James C. Ho, the 5th Circuit at New Orleans. He is a former Texas solicitor general. In 2022, he said he won’t be hiring future Yale Law School grads as clerks because the university cancels conservative views. (Law360, Fox News, the New York Times, Bloomberg Law)

  • Judge Amul Thapar, the 6th Circuit at Cincinnati. He is a former Williams & Connolly lawyer. He has suggested that conservatives withhold donations to law schools that don’t teach originalism. (Law360, Fox News, Bloomberg Law)

  • Judge Joan Larsen, the 6th Circuit at Cincinnati. She was formerly a Michigan Supreme Court justice. (Fox News)

  • Judge Gregory G. Katsas, the U.S. Court of Appeals for the District of Columbia Circuit. He is a former Jones Day lawyer and a former deputy counsel in the Trump White House. (Law360, Fox News)

  • Judge Neomi Rao, the D.C. Circuit. She was the administrator for the Office of Information and Regulatory Affairs in the Trump administration. (Fox News, Bloomberg Law)

  • Judge Lawrence VanDyke, the 9th Circuit at San Francisco. He is a former Gibson, Dunn & Crutcher lawyer and a former solicitor general in Nevada and Montana. He received a “not qualified” rating by the ABA Standing Committee on the Federal Judiciary, which cited an “entitlement temperament.” (Law360, Fox News, the New York Times)

  • Judge Patrick Bumatay, the 9th Circuit at San Francisco. He was the first openly gay judge to serve on the 9th Circuit. (Bloomberg Law)

  • Judge Kenneth Lee, the 9th Circuit at San Francisco. He wrote an opinion finding that a ban on gun advertising that appeals to minors was likely unconstitutional. (Bloomberg Law)

  • Judge Barbara Lagoa, the 11th Circuit at Atlanta. She is a former Florida Supreme Court justice and former Greenberg Traurig lawyer. (Fox News)

  • Judge Britt Grant, the 11th Circuit at Atlanta. She is a former Georgia Supreme Court justice. (Fox News)

  • Judge Kevin Newsom, the 11th Circuit at Atlanta. He was formerly the Alabama solicitor general. (Fox News)

  • Judge Michael Park, the 2nd Circuit at New York. He formerly was a lawyer at Wilmer Cutler Pickering Hale and Dorr; Dechert; and Consovoy McCarthy Park. (Bloomberg Law)

  • Judge David Stras, the 8th Circuit St. Louis. He is a former Minnesota Supreme Court justice. (Fox News)

  • Judge Allison Jones Rushing, the 4th Circuit at Richmond, Virginia. She was a Williams & Connolly lawyer. (Fox News)

  • Kate Comerford Todd, a former deputy counsel in the Trump White House. (Fox News)

  • U.S. District Judge Aileen M. Cannon, the Southern District of Florida. She dismissed the classified documents case against Trump. (Law360)

  • U.S. District Judge Patrick Wyrick, the Western District of Oklahoma. He was formerly an Oklahoma Supreme Court justice. (Fox News)

  • Kristen Waggoner, CEO and general counsel at Alliance Defending Freedom. (Law360, Fox News, the New York Times)

  • Republican U.S. Sen. Tom Cotton of Arkansas. (Fox News)

  • Republican Sen. Mike Lee of Utah. (Fox News)

  • Morse Tan, the former dean of the Liberty University School of Law, who is now the senior executive director of Liberty University’s Center for Law & Government. (Bloomberg Law, the New York Times)

  • Former North Carolina Supreme Court Chief Justice Mark Martin, founding dean of High Point University’s law school. (The New York Times)

Confirmation of Trump’s judicial nominees will be easier when Republicans take control of the U.S. Senate, Law360 reports.

Republican Sen. Charles Grassley of Iowa intends to reclaim his position as chair of the Senate Judiciary Committee that will consider Trump’s choices, a Grassley spokesperson told Law360.

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Law Schools

Don’t give money to law schools unless they teach originalism, conservative federal appeals judge says

By Debra Cassens Weiss

October 29, 2024, 12:17 pm CDT

“Anti-originalist” law professors dominate law schools, and they aren’t equipping students with the practical knowledge that they need to make originalist arguments, a conservative federal appeals judge said last week in a lecture hosted by the Heritage Foundation, a conservative think tank.

Judge Amul Thapar of the 6th U.S. Circuit Court of Appeals at Cincinnati said conservatives could spur change by withholding donations to the schools, report Bloomberg Law, Law360 and Reuters via the Originalism Blog. How Appealing links to the video.

Taxpayers can also play a role by demanding that publicly funded law schools stop “pursuing their own political agendas,” Thapar said, according to Reuters.

Bloomberg Law and Law360 highlighted this remark: “Make no mistake: Money talks. Only when the taxpayers and donors alike demand it will law schools start to change.”

Originalist judges interpret the Constitution based on its meaning as understood at the time it was written. Thapar, an appointee of former President Donald Trump, was on Trump’s U.S. Supreme Court short list.

Thapar said law professors at too many law schools tell their students that a court’s originalist analysis “is just a smokescreen for some nefarious political goal.”

The lack of training, Thapar said, means that lawyers are missing originalist arguments that could benefit their clients, according to Bloomberg Law and Law360.

“It’s amazing how many times my colleagues and I say, ‘If they only would have made argument X, their client might have had a chance,’” Thapar said.

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3. Coca-Cola delivery man who used slurs as…

Disability Law

Coca-Cola delivery man who used slurs as result of Tourette syndrome loses disability suit after job transfer

By Debra Cassens Weiss

February 21, 2024, 12:37 pm CST

A Coca-Cola delivery man whose Tourette syndrome caused him to use profanity and racial slurs when stocking customer stores was not entitled to keep that job under the Americans With Disabilities Act, a federal appeals court has ruled.

The 6th U.S. Circuit Court of Appeals at Cincinnati ruled against Tennessee driver Cameron Cooper in a Feb. 15 opinion.

HR Dive has coverage, the Volokh Conspiracy has opinion highlights, and the National Law Review has an analysis.

Under the Americans With Disabilities Act, plaintiffs must show that they are disabled. They also must show that they are otherwise qualified for their position without accommodations, with the elimination of a job requirement, or with a reasonable accommodation.

To win the ADA case, the employer then must show that the challenged job requirement is essential and a business necessity, and that any proposed accommodation would be an undue hardship.

Coca-Cola had received at least two complaints from store managers about Cooper’s profanity and racial slurs.

Coca-Cola approved two medical leaves for Cooper; adjusted his route, so that he wouldn’t have to visit Dollar General stores; and allowed him to have a seasonal position as a delivery helper. In December 2019, Coca-Cola moved Cooper to a warehouse position, with negotiated pay of $18.96 per hour instead of the $20.38 per hour that he made as a delivery driver.

Cooper had alleged that the transfer was discriminatory because he was otherwise qualified for the delivery position without an accommodation or, in the alternative, that he was qualified for the position with a reasonable accommodation—an alternative route that was not customer-facing.

The appeals court rejected the arguments in upholding a grant of summary judgment to Coca-Cola.

First, the 6th Circuit determined that “excellent customer service” was an essential function of Cooper’s position. Coca-Cola had identified “excellent customer services skills” in its written job description for Cooper’s job, and Cooper stipulated that those skills were an essential function of the position.

Next, the appeals court concluded that Cooper could not have provided excellent customer service without an accommodation.

“It is undisputed that Cooper used racial slurs, those slurs were decipherable to at least some customers, and the decipherable slurs offended customers,” the 6th Circuit said. “Cooper’s own doctor also stated that Cooper needed an accommodation to perform his job. Based on these facts, the district court did not err in finding that, as a matter of law, Cooper could not provide excellent customer service without an accommodation.”

Finally, the appeals court said Cooper did not identify a reasonable accommodation. He had sought a position that didn’t involve customer interaction, but none was available.

The National Law Review article, written by law firm Bradley Arant Boult Cummings, said the decision has a lesson for employers.

“Although the thought of updating and adding more detail to your written job descriptions may make your HR department grumble, this case demonstrates why good job descriptions are extremely important,” the article said.

“Even something that would seem to be common sense—being able to effectively relate and not offend your customers—may be the key to defending your next lawsuit. [Coca-Cola] defeated this lawsuit because it was able to point to that essential function in the job description, as well as their attempts to figure out any way to accommodate Cooper’s disability.”