Amicus Curiae Brief — Alicia Thompson, Petitioner v. Janelle Henderson

No. 22-823

In the Supreme Court of the United States

__________

ALICIA THOMPSON, PETITIONER

v.

JANELLE H ENDERSON, RESPONDENT

__________

ON PETITION FOR WRIT OF CERTIORARI

TO THE WASHINGTON SUPREME COURT

__________

BRIEF OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

AND THE AMERICAN TORT REFORM

ASSOCIATION AS AMICI CURIAE

IN SUPPORT OF PETITIONER

__________

TARA S. MORRISSEY

DAN K. WEBB

JONATHAN D. URICK

LINDA T. COBERLY

U.S. CHAMBER LITIGATION

Counsel of Record

CENTER

WINSTON & STRAWN LLP

1615 H Street, N.W.

35 W. Wacker Drive

Washington, DC 20062

Chicago, IL 60601

(312) 558-8768

lcoberly@winston.com

H. SHERMAN JOYCE

LAUREN SHEETS JARRELL

AMERICAN TORT REFORM

ASSOCIATION

1101 Connecticut Ave.,

N.W., Suite 400

Washington, DC 20036

CHRISTOPHER D. MAN

WINSTON & STRAWN LLP

1901 L Street, N.W.

Washington, DC 20036

Counsel for Amici Curiae

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES........................................iii

INTRODUCTION AND

INTERESTS OF AMICI CURIAE........................ 1

SUMMARY OF ARGUMENT...................................... 3

ARGUMENT.................................................................. 7

I.

The decision violates this Court’s

precedents by creating an effectively

irrebuttable presumption. ..................................... 7

II. The decision will create unfair

disadvantages for litigants—and

particularly corporate litigants—by tying

the hands of trial lawyers.................................... 10

III. This Court should summarily reverse or

otherwise grant plenary review.......................... 14

CONCLUSION ............................................................ 16

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Avery v. Georgia,

345 U.S. 559 (1953) ............................................... 7

Batson v. Kentucky,

476 U.S. 79 (1986) ................................................. 7

Brousseau v. Haugen,

543 U.S. 194 (2004) ............................................. 15

Caetano v. Massachusetts,

577 U.S. 411 (2016) ............................................. 15

Castaneda v. Partida,

430 U.S. 482 (1977) ............................................... 7

Edmonson v. Leesville Concrete Co.,

500 U.S. 614 (1991) ............................................... 7

Ham v. South Carolina,

409 U.S. 524 (1973) ............................................... 7

Heiner v. Donnan,

285 U.S. 312 (1932) ............................................. 10

Hernandez v. Texas,

347 U.S. 475 (1954) ............................................... 7

Holmes v. South Carolina,

547 U.S. 319 (2006) ............................................. 13

Johnson v. Virginia,

373 U.S. 1053 (1963) ........................................... 15

iv

Lindsey v. Normet,

405 U.S. 56 (1972) ............................................... 13

Mathews v. Eldridge,

424 U.S. 319 (1976) ............................................. 13

Peña-Rodriguez v. Colorado,

580 U.S. 206 (2017) ....................................... 7, 8, 9

Pennsylvania v. Bd. of Dirs. of City Trust of

City of Phila., 353 U.S. 230 (1957) .................... 15

Rice v. Collins,

546 U.S. 333 (2006) ............................................... 9

Rosales-Lopez v. United States,

451 U.S. 182 (1981) ............................................... 7

Skilling v. United States,

561 U.S. 358 (2010) ............................................... 8

Strauder v. West Virginia,

100 U.S. 303 (1880) ............................................... 7

Tanner v. United States,

483 U.S. 107 (1987) ........................................... 5, 8

Turner v. Indus. Comm’n of Utah,

423 U.S. 44 (1975) ............................................... 15

Turner v. Murray,

476 U.S. 28 (1986) ................................................. 7

Vlandis v. Kline,

412 U.S. 441 (1973) ............................................. 10

v

Other Authorities

S. Ct. R.10(c) .............................................................. 14

U.S. Const. amend. XIV ........................................... 10

INTRODUCTION

AND INTERESTS OF AMICI CURIAE 1

Racial bias in our society—and in the justice system in particular—is a real issue that must be taken

seriously. The Washington Supreme Court’s objective

of eliminating such bias is a noble goal. But that

court’s approach to this issue deviates sharply from

the way this Court has sought to minimize racial bias

in civil litigation. The court has adopted a test that

injects a new form of unfairness and uncertainty into

the judicial system. As a result, the decision below violates due process and broadly threatens the fairness

and predictability of civil trials. It will tie the hands

of trial lawyers, decrease the ability of judges to manage the cases before them, and destabilize the role and

finality of jury verdicts. To explain the due process

implications of this threat, Amici present this brief in

support of the petition and urge this Court to grant

certiorari and reverse, either summarily or after plenary review. This Court should make clear that allegations of racial bias in litigation must be decided

based on evidence, not on general presumptions based

merely on the race of the litigants.

Amici are well suited to provide the perspective of

the business community on these important issues.

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It

represents approximately 300,000 direct members and

1 No counsel for any party authored this brief in whole

or in part, and no entity or person other than Amici,

their members, or their counsel made any monetary

contribution intended to fund the brief’s preparation

or submission. Counsel of record for both parties received the required notice of this brief.

2

indirectly represents the interests of more than three

million companies and professional organizations of

every size, in every industry sector, and from every region of the country. An important function of the

Chamber is to represent the interests of its members

in matters before Congress, the Executive Branch, and

the courts. To that end, the Chamber regularly files

amicus briefs in cases (like this one) that raise issues

of concern to the nation’s business community.

The American Tort Reform Association is a broadbased coalition of businesses, corporations, municipalities, associations, and professional firms that have

pooled their resources to promote reform of the civil

justice system with the goal of ensuring fairness, balance, and predictability in civil litigation. For more

than three decades, ATRA has filed amicus briefs in

cases involving important liability issues.

The Washington Supreme Court’s decision represents a threat to Amici’s members and the business

community as a whole. If allowed to stand, decisions

like this one will drive up the cost of litigation and the

settlement value of even meritless cases by making

jury verdicts more uncertain and trials less fair. Such

decisions will also expose the Amici’s members to endless litigation by making it far too easy for litigants to

void unfavorable verdicts and obtain a retrial whenever they receive verdicts they do not like. This

Court’s intervention is required.

3

SUMMARY OF ARGUMENT

Courts should use all the evidence-based tools at

their disposal to keep racism out of the justice system.

But the Washington Supreme Court has adopted a

shocking new rule that eschews evidence altogether.

It effectively assumes that any verdict involving a

member of a minority race was the product of racial

bias unless proven otherwise. Rather than presume

that a properly empaneled and screened jury’s verdict

was reached fairly, that court now presumes the opposite. This approach is an unfair and unconstitutional

recipe for chaos. It allows litigants to void any disappointing verdict and obtain a new trial based on a

heavy-handed presumption that it is impossible for litigants and witnesses of minority races to receive fair

consideration in the State of Washington.

Indeed, illustrating the extreme consequences of

that approach, the Washington Supreme Court further

held that a new trial is presumptively warranted if

there is any possibility that a race-neutral argument

might have evoked a historical trope or stereotype—no

matter how common or generic the argument, and no

matter how tenuous the connection. Here, for example, the supposedly racially tinged argument was as

simple and inoffensive as the suggestion that the

plaintiff had been “confrontational” in her testimony

and was seeking an excessive damages award.

In the State of Washington, then, no proof of actual

racism by the jury is required. Instead, when deciding

a motion for a new civil trial, “‘[t]he ultimate question

for the court is whether an objective observer (one who

is aware that implicit, institutional, and unconscious

biases, in addition to purposeful discrimination, have

influenced jury verdicts in Washington State) could

4

view race as a factor in the verdict.’” Pet. App. 3a (emphasis added) (quoting State v. Berhe, 444 P.3d 1172

(Wash. 2019)). If “this objective observer could view

race as a factor in the verdict,” a prima facie claim has

been made and a hearing is mandatory, “regardless of

whether intentional misconduct has been shown or the

court believes there is another explanation.” Pet. App.

4a (emphasis added). Then, “[a]t that hearing, the

party seeking to preserve the verdict bears the burden

to prove that race was not a factor. If that burden is

not met, the court must conclude that substantial justice has not been done and order a new trial.” Id. (emphasis added).

Plainly, the Washington Supreme Court’s hypothetical “objective observer” is not an impartial third

party looking for evidence of unfairness or racism in a

particular case. The central premise of this analysis is

that “[r]acism is endemic” and that this hypothetical

observer would know that historically “implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts

in Washington State.” Pet. App. 3a, 4a. That historical knowledge alone, evidently, is enough for courts to

find that this objective observer “could view race as a

factor in the verdict,” even if there is no evidence of

racism by the court, the trial lawyers, or the jurors—

and even if innocent explanations are more likely.

This remains true even where, as here, the litigant

who claims discrimination actually won the case. Pet.

App. 4a.

The very premise of this analysis proves its overbreadth. Given the weight the court’s analysis places

on the historical impact of racism, a disappointed litigant in a minority racial group will nearly always be

able to make out a prima facie case of racial bias.

5

Regardless of case-specific facts or context, the baseline assumption of racism leads unavoidably to the

conclusion for which the court is supposedly testing in

the first place. The court’s analysis is thus not any sort

of objective, wholistic consideration of the evidence; it

is a legal presumption of racial bias.

Further, this presumption is effectively irrebuttable. The Washington Supreme Court shifts the burden

of proof to the party defending the verdict to prove

there could not have been any such bias—conscious or

unconscious. But especially in this context, it would

be impossible for a litigant to prove a negative. For

starters, how could a litigant possibly prove that negative when the court already declared as a matter of

law that racism remains endemic? And how could a

litigant “prove that race was not a factor” in the minds

of jurors (Pet.4a), when the potential racism could

have been silent, implicit, unintentional, or unconscious? Although voir dire offers parties an opportunity to exclude jurors for any potential biases (racial

or otherwise), litigants at a post-trial hearing typically

cannot question jurors about their deliberations or

how they reached their verdict. See, e.g., Tanner v.

United States, 483 U.S. 107, 117–21 (1987). Consequently, it would be effectively impossible for a litigant

to prove that race did not factor into the mind of any

juror, even unconsciously.

Worse, the Washington Supreme Court’s decision

effectively declares off-limits a variety of race-neutral

arguments commonly used to challenge witness credibility, if those approaches are used with respect to witnesses of minority races. The Washington Supreme

Court fears that such routine, race-neutral arguments

may consciously or unconsciously play into racist

tropes that may exist in the minds of jurors. In this

6

case, for example, the court held that it was improper

(and even potentially sanctionable) for a trial lawyer

to suggest that the testimony of a Black plaintiff seeking money damages was biased due to her financial interest in the case—or that her Black witnesses were

biased in her favor due to friendship. According to the

court, such arguments are suspect, as they could play

into broader racist tropes. Pet. App. 20a–22a. Of

course, such arguments—which are exceedingly common in all manner of trials—would presumably remain fair game if the plaintiff or witnesses were of a

different race.

In short, the Washington Supreme Court has

taken a subtle and complex issue and attempted to

solve it by casting the entire civil litigation system in

doubt. The decision allows litigants of minority races

(or with a supporting witness of a minority race) to

void a verdict at will because their opponents’ common,

race-neutral arguments trigger a presumption that

racism could have impacted the verdict—even in the

absence of proof that it actually did. The outcome is

unfair and uncertain, placing an unwarranted burden

on litigants depending on the race of the person on the

witness stand or on the other side of the “v.”

Rather than entrusting the fairness of trials to the

sound discretion of experienced trial judges, the court’s

rule creates a presumption of racial bias that will be

all but impossible to displace. The deciding factor in

too many post-trial motions in the State of Washington

will now be more likely—not less—to be the race of the

litigants or witnesses. This result cannot stand.

7

ARGUMENT

I.

The decision violates this Court’s precedents

by creating an effectively irrebuttable presumption.

Racism is real, and it has undeniably had an impact on our justice system over time. This Court has

sought to reduce the impact of racial bias in our justice

system through a variety of important reforms, including removing barriers that have prevented racial minorities from serving on juries, 2 barring litigants from

striking jurors based on race, 3 encouraging the robust

screening of jurors for racial bias through voir dire,4

and recognizing a racial-bias exception to the no-impeachment rule to examine clear statements of racial

bias by a juror. 5 The aim of these authorities (among

others) has been to promote fairness and reliability in

the process itself.

With those procedural protections in place, this

Court has questioned the fairness of a verdict only

where bias is proven. See, e.g., Skilling v. United

States, 561 U.S. 358, 398 (2010) (finding it improper to

See, e.g., Castaneda v. Partida, 430 U.S. 482 (1977);

Strauder v. West Virginia, 100 U.S. 303 (1880); Hernandez v. Texas, 347 U.S. 475 (1954); Avery v. Georgia,

345 U.S. 559 (1953).

3 See, e.g., Batson v. Kentucky, 476 U.S. 79 (1986); Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991)

(extending Batson to private litigants in civil trials).

4 See, e.g., Turner v. Murray, 476 U.S. 28 (1986);

Rosales-Lopez v. United States, 451 U.S. 182 (1981);

Ham v. South Carolina, 409 U.S. 524 (1973).

5 See, e.g., Peña-Rodriguez v. Colorado, 580 U.S. 206,

211 (2017).

2

8

presume juror prejudice absent extreme circumstances, and holding that a challenge to a verdict requires proof of “actual bias”); Tanner, 483 U.S. at 117–

21 (recognizing that it is improper to examine jurors

for internal sources of bias after a verdict is reached,

noting that such biases should be addressed before a

verdict is reached through voir dire).

To be sure, the possibility of unconscious bias is always present, at least hypothetically. But this Court

has routinely recognized the ability of juries to render

fair verdicts, and it presumes that they have done so,

unless the circumstances demonstrate otherwise. The

Court has explained: “Like all human institutions, the

jury system has its flaws, yet experience shows that

fair and impartial verdicts can be reached if the jury

follows the court’s instructions and undertakes deliberations that are honest, candid, robust, and based on

common sense.” Peña-Rodriguez, 580 U.S. at 211.

In the interest of finality and fairness, then, this

Court presumes the effectiveness of the trial judge’s

discretion and the various other safeguards for preventing racial bias by juries, absent proof that “one or

more jurors made statements exhibiting overt racial

bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.” Id. at 225. There must be proof of a “clear statement” by a juror that “he or she relied on racial stereotype or animus” in reaching a verdict. Id. “Not every

offhand comment indicating racial bias or hostility” is

sufficient. Id. Rather, “the statement must tend to

show that racial animus was a significant motivating

factor.” Id. This Court has never disturbed the finality of a verdict by hypothesizing that a jury “could”

have been influenced by unconscious bias.

9

Similarly, this Court recognizes that due process

rights are violated when a litigant exercises a peremptory strike of a potential juror based on race, but it requires the movant to prove that such a race-based juror strike occurred. After a prima facie claim of an improper juror strike has been made, the claim will be

defeated if the party can “present a race-neutral explanation” for the strike. Rice v. Collins, 546 U.S. 333,

338 (2006). This Court “does not demand an explanation that is persuasive, or even plausible; so long as the

reason is not inherently discriminatory, it suffices.”

Id. (citations omitted). This principle respects the efforts of those in the judicial system who work tirelessly

to ensure a fair process and the finality of jury verdicts

absent actual proof that something went awry.

By contrast, the Washington Supreme Court has

essentially assumed that all efforts to minimize racial

bias will necessarily fail. It starts its analysis with a

virtually irrebuttable presumption—relatively easy to

invoke—that racism is so deeply entrenched that it

must have motivated any verdict involving litigants or

witnesses of particular races based on the history of

racism in the state. The court applies this presumption even when the jury found in favor of the plaintiff

invoking it, awarding that plaintiff a verdict that was

by no means nominal. The fact that the jury awarded

the plaintiff here a sizeable sum certainly undercuts

the inference that this jury was biased against her.

Nor is there any evidence of actual racial bias in the

record—unlike, for example, the juror admissions of

race-based decision-making at issue in Peña-Rodriguez. Still, based simply on the history of racism and

the fact that a lawyer used a race-neutral credibility

argument that the litigant argues invoked a

10

stereotype, the court presumed bias and placed the

burden on the other side to prove its absence.

In effect, the court allowed Respondent to treat the

verdict like an initial offer in a round of negotiation,

which she was free to reject by invoking the presumption of racism, only to try again for a better award before a second jury. Civil litigation in Washington has

thus become a game of “heads, I win; tails, I get a doover.” The loser here is not just the opposing party; it

is the legitimacy and finality of civil trials.

This Court has held that a presumption that “operates to deny a fair opportunity to rebut it violates the

due process clause of the Fourteenth Amendment.”

Heiner v. Donnan, 285 U.S. 312, 329 (1932); see also

Vlandis v. Kline, 412 U.S. 441, 446 (1973) (same).

Washington’s new standard does exactly that, by presuming that racial bias affected the jury verdict and

placing the burden on the non-movant to prove there

was “no effect on the verdict.” Pet. App. 20a.

II. The decision will create unfair disadvantages for litigants—and particularly corporate litigants—by tying the hands of trial

lawyers.

Importantly, the Washington Supreme Court’s

test not only threatens the ability of litigants to defend

favorable verdicts but may also compromise the fairness of the trial itself. By deeming routine race-neutral arguments out-of-bounds—if and only if the litigant or witness is a member of a racial minority

group—the Washington Supreme Court has hamstrung the ability of trial lawyers to represent their clients. This case highlights the problem, making it an

ideal vehicle for this Court’s review.

11

The Washington Supreme Court’s decision arose

from a routine car accident in which a White woman

(Petitioner) admitted fault in striking a Black woman

(Respondent). A trial was held on damages, and Respondent, who did not appear to suffer any serious injuries, was awarded $9,200 in damages, rather than

the $3.5 million she sought.

Despite her victory, Respondent sought a new

trial, arguing (among other things) that Petitioner’s

counsel had told the jury that Respondent’s testimony

was “combative” and “confrontational,” that the testimony of her friends and family was inherently biased,

and “that the only reason for the trial was [Respondent’s] desire for a financial windfall.” Pet. 6a–7a. She

maintained that these race-neutral arguments may

have triggered the jurors’ unconscious racial bias

against her, and the Washington Supreme Court

agreed.

But these are race-neutral, routine arguments

about the credibility of the witnesses and the reasonableness of the demands. Trial lawyers make such arguments every day. Indeed, it may well have been irresponsible for defense counsel not to have made them

on this record. According to the Washington Supreme

Court, however, because of the race of the plaintiff and

her supporting witnesses, these kinds of arguments

raise an irrebuttable presumption of racial bias in the

verdict. Indeed, the Washington Supreme Court remanded the case for the trial court to decide whether

defense counsel should be sanctioned for making such

statements. Pet.31a–32a.

Witness credibility is of critical importance in any

trial. If a witness was combative, self-interested, or

personally tied to a party, the trial lawyer must be able

12

to point that out. Similarly, if a plaintiff is seeking

money damages, it should be fair game to note for the

jury that the plaintiff’s financial interest in the case

may warrant reviewing her testimony with a critical

eye. And if the damages demand seems to exceed the

plaintiff’s level of injury dramatically, that too should

be fair game for a defense lawyer to mention.

But in the Washington Supreme Court’s view, defense counsel’s argument that Respondent’s “injuries

were minimal and intimat[ion] that the sole reason she

had proceeded to trial was that she saw the collision

as an opportunity for financial gain” somehow improperly “alluded to racist stereotypes about Black women

as untrustworthy and motivated by the desire to acquire an unearned financial windfall.” Pet. App. 21a–

22a. The court claimed that this argument played into

the “myth of the ‘welfare queen,’” which “refers to a

woman who purposefully ‘shuns work’ in order to live

off public benefits.” Pet. App. 21a n.9. Similarly, that

court found that describing Respondent’s conduct on

the witness stand as “combative” and “confrontational,” rather than forthright, to be potentially sanctionable because those words “evoke the harmful stereotype of an ‘angry Black woman.’” Pet. App. 20a.

The Washington Supreme Court also criticized defense counsel’s argument that Respondent’s witnesses

were biased in her favor due to friendship—and that

their testimony seemed rehearsed, given that three of

them used the same “life of the party” reference to describe Respondent. Pet. App. 141a, 142a, 146a. From

this, the court somehow found that “[i]ntimating that

the Black witnesses had joined together to lie for the

Black plaintiff could invite jurors to suspect them as a

group and to make decisions based on biases about

race and truthfulness.” Pet. App. 23a. Based in part

13

on these findings, the court put the burden on Petitioner to disprove the impact of racial bias.

These conclusions are deeply problematic. All

these arguments were race-neutral on their face, and

all of them are common arguments relating to a witness’s credibility. Going forward, whether a trial lawyer may use these kinds of arguments about credibility

apparently depends on the witness’s race. Under the

Washington Supreme Court’s ruling, making such arguments about a Black witness casts the jury verdict

in doubt and even may subject the lawyer to sanctions.

Such a rule impairs the ability of litigants to defend themselves in civil litigation and to receive fair

judicial process. This violates the fundamental due

process principle that all parties have a “meaningful

opportunity to present their case.” Mathews v. Eldridge, 424 U.S. 319, 333, 349 (1976) (citation omitted). That principle includes the right “‘to present

every available defense,’” Lindsey v. Normet, 405 U.S.

56, 66 (1972) (quoting Am. Sur. Co. v. Baldwin, 287

U.S. 156, 168, (1932)), and prohibits “evidence rules

that * * * are ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.” Holmes v. South

Carolina, 547 U.S. 319, 324 (2006) (citing United

States v. Scheffer, 523 U.S. 303, 308 (1998)).

Thus, the Washington Supreme Court’s decision

makes the trial process itself unfair by unreasonably

and arbitrarily limiting the arguments trial lawyers

may make. Apparently, a trial lawyer in Washington

may no longer argue that a Black witness was not

credible—either because of her demeanor, or because

of her relationships, or because of her financial selfinterest in the outcome. This rule creates an unfair

imbalance at trial—and then compounds that unfair

14

advantage by presuming that any trial victory won in

the face of such comments was presumptively tainted

by bias and is subject to challenge by a dissatisfied litigant.

This is not to say the State of Washington and its

courts are powerless to address the risk of bias. Quite

the contrary. Although Amici take no position on any

particular proposal, the Washington courts and legislature have several options to address potential racial

bias in the judicial system beyond the safeguards already prescribed by this Court. They could require a

more equitably drawn venire, or direct more rigorous

questioning of prospective jurors for bias, or eliminate

peremptory strikes altogether so that a litigant must

show cause to strike any juror. And certainly trial

judges should be on guard for instances in which arguments by trial lawyers do invoke bias or cross the line

to racist tropes. But precluding common, race-neutral

challenges to the credibility of certain witnesses—but

not others—introduces a degree of unfairness and uncertainty that is both unmanageable for trial lawyers

and intolerable for the justice system as a whole.

III. This Court should summarily reverse or otherwise grant plenary review.

The Washington Supreme Court’s decision is flatly

contrary to a long line of precedents of this Court, so it

meets this Court’s criteria for review. Review is warranted when “a state court * * * has decided an important federal question in a way that conflicts with

relevant decisions of this Court.” S. Ct. R.10(c).

Whether this new approach is confined to the State of

Washington—or other courts follow suit—the decision

will have a profound impact on Amici’s members.

Even as it stands, the decision applies to every civil

15

case across the State of Washington that involves litigants or witnesses of historically marginalized races,

severely compromising the fairness and predictability

of civil trials.

In a case like this, in which a state court’s decision

so flagrantly violates this Court’s precedents, this

Court often summarily reverses, and it should do so

here. See, e.g., Caetano v. Massachusetts, 577 U.S.

411, 412 (2016) (reversing summarily a state court decision that “contradict[ed] this Court’s precedent”);

Brousseau v. Haugen, 543 U.S. 194, 198 n.3 (2004)

(“We exercise our summary reversal practice here to

correct a misapprehension [of law.]”). This has been

particularly true when the state court decision has involved the misuse of race for legal purposes. See, e.g.,

Johnson v. Virginia, 373 U.S. 1053 (1963); Pennsylvania v. Bd. of Dirs. of City Trust of City of Phila., 353

U.S. 230 (1957).

The situation here is comparable to Turner v. Industrial Commission of Utah, 423 U.S. 44 (1975), in

which this Court summarily reversed a decision by the

Supreme Court of Utah that upheld a presumption

that discriminated against pregnant women seeking

unemployment compensation. There, as here, the

state court decision ran counter to this Court’s precedent regarding the use of a protected status in dispensing government rights. And the impact of the decision

here is even broader, as it undermines the fairness of

all kinds of civil cases across the state and is not confined to any distinct category of cases, such as those

involving unemployment compensation.

The record in this case is clear, and the Washington Supreme Court’s decision is patently inconsistent

with this Court’s precedent, with devastating

16

consequences for both the fairness and the appearance

of fairness in the judicial system. Summary reversal

is warranted. At a minimum, however, this Court

should grant plenary review and assess the Washington Supreme Court’s decision on the merits.

CONCLUSION

For the foregoing reasons, the Court should summarily reverse the judgment of the Washington Supreme Court or, alternatively, grant the petition for

plenary review.

Respectfully submitted.

TARA S. MORRISSEY

JONATHAN D. URICK

U.S. CHAMBER LITIGATION

CENTER

1615 H Street, N.W.

Washington, DC 20062

DAN K. WEBB

LINDA T. COBERLY

Counsel of Record

WINSTON & STRAWN LLP

35 W. Wacker Drive

Chicago, IL 60601

(312) 558-8768

lcoberly@winston.com

H. SHERMAN JOYCE

LAUREN SHEETS JARRELL

AMERICAN TORT REFORM

ASSOCIATION

1101 Connecticut Ave.,

N.W., Suite 400

Washington, DC 20036

CHRISTOPHER D. MAN

WINSTON & STRAWN LLP

1901 L Street, N.W.

Washington, DC 20036

Counsel for Amicus Curiae

MARCH 2023