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Joshua Arnold | The Washington Stand
The U.S. Supreme Court heard oral arguments Wednesday regarding a 2023 Tennessee law (SB 1) protecting minors from gender transition procedures. After Tennessee prevailed in the Sixth Circuit Court of Appeals, the Biden administration’s Department of Justice (DOJ) intervened in the case and appealed to the Supreme Court, which agreed to hear the case in June of this year.
In the case (U.S. v. Skrmetti), U.S. Solicitor General Elizabeth Prelogar argued for the Biden administration, trans-identifying ACLU lawyer Chase Strangio argued for the parties who initially challenged Tennessee’s law, and Tennessee Solicitor General Matt Rice argued for the state of Tennessee.
Court-watching is, by its nature, an exercise in delayed gratification, where the results of the competition held today will not be published for another six months. Just imagine if football teams had to play their game and travel home before finding out who won, or — for an example with less obvious scoring — if Olympic gymnasts received their medals at the next edition of the games.
In other words, the best court-watchers can muster is informed speculation about how the oral arguments went. But there are still several noteworthy features to discuss.
First, the oral arguments dragged on for an unusually long time, clocking in at two-and-a-half hours, whereas most oral arguments last no longer than 90 minutes. The unusual length suggests that justices are unusually interested in or perplexed by the issue in the case. Among the exchanges that caused the hearing to run long, Justice Samuel Alito spent 10 minutes getting the ACLU’s Strangio to admit that transgender status is not immutable, and Justice Ketanji Brown Jackson argued passionately with Tennessee’s Rice about whether the law classified based on sex, or merely based on age and purpose.
A weightier issue is whether any justices signaled how they might vote on the outcome by the types of questions they asked. Having listened to the oral arguments today, my amateurish estimation is that Tennessee leads its opponents four justices to three (out of nine total).
Thomas and Alito
On one side were the longtime conservative stalwarts on the court, Justices Clarence Thomas and Samuel Alito.
Justice Thomas opened the questioning by correcting Prelogar’s opening statement, pointing out that Tennessee’s law was not a total ban of gender transition procedures but only applied to minors. He asked whether the law should therefore be “simply a case of age classification.” He later pressed on the biological differences between “if a girl takes testosterone or if a boy takes testosterone.” Thomas also seemed skeptical of the entire premise of the challengers’ argument. Normally, in Equal Protection cases, he said, “one group receives something that the other group does not. And I’m trying to discern that in this case.”
Justice Alito challenged the evidence for gender transition procedures, noting that the U.K.’s influential Cass report had been published since the DOJ first appealed the case and protested that the DOJ had “relegated the Cass report to a footnote.” Alito invited Prelogar to “withdraw the statement that there is overwhelming evidence establishing that these treatments have benefits that greatly outweigh the risks and the dangers.” As mentioned above, he also pressed Strangio to admit that transgender status is not immutable, a point that undermines its legitimacy as a class that merits constitutional protection from discrimination and emphasizes the risk of regret that minors might feel if their bodies are permanently altered.
Roberts and Kavanaugh
Chief Justice John Roberts and Justice Brett Kavanaugh articulated a less controversial position that still leans in Tennessee’s favor — namely, that courts of constitutional law are not competent to second-guess the medical judgments of state legislatures on medically disputed issues.
Roberts suggested that “medical issues are much more heavily involved” in Skrmetti than in precedents the DOJ attempted to connect to it. And not just any medical issues, he added. This case involved “medical nuances” dealing with “evolving standards and technical treatment issues and the effect of … prescribing particular medications.” Roberts concluded, “Doesn’t that make a stronger case for us to leave those determinations to the legislative bodies?” Roberts also seemed skeptical about the applicability of Bostock v. Clayton County, a 2020 Supreme Court decision that redefined sex-based discrimination to include transgender status in Title VII employment law.
Kavanaugh picked up Robert’s point in his own questioning, suggesting that “the Constitution doesn’t take sides on how to resolve that medical and policy debate. The Constitution is neutral on the question.” Kavanaugh also recognized the “evolving debate” on gender transition procedures and how European countries are backpedaling on permitting minors to access these treatments. “If it’s evolving like that and changing, and England’s pulling back, and Sweden is pulling back, it strikes me as, you know, [a] pretty heavy yellow light, if not red light, for this court to come in — the nine of us — and to constitutionalize the whole area.”
Sotomayor, Kagan, and Jackson
On the other side, Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson each seemed in favor of striking down the Tennessee statute.
Sotomayor offered softball questions that helped Prelogar and Strangio further clarify arguments where they had struggled to make a compelling point. She also prompted them about additional points to raise, with lines like, “But the evidence is very clear that there are some children who actually need this treatment, isn’t [it]?” Sotomayor also professed to be “quite worried about the role of the court questions and the constitutional allocation of authority concerns,” the position taken by Roberts and Kavanaugh.
Kagan had fewer interactions but still expressed a position against the law. “I understand the formal ways in which this is a sex-based classification,” she said, “but I’m wondering whether that’s not a little bit formal, and what’s really going on here is discrimination against a disregard for young people who are trans. And why we shouldn’t think of the law in that way?” At another point, she suggested that the “structure” of laws like Tennessee’s would not survive the heightened scrutiny applied to discrimination on the basis of sex.
Jackson was the most vocal of the progressive justices, vehemently insisting at multiple points that the law obviously involved sex-based classifications. She also claimed the arguments in favor of Tennessee’s law “sound [like] the same kinds of arguments that were made back in the day — 50s, 60s — with respect to racial classifications and inconsistencies. I’m thinking in particular about Loving [v. Virginia, a case where the Supreme Court struck down a ban on interracial marriage].”
Barrett and Gorsuch
It isn’t possible, on the basis of Wednesday’s oral arguments, to say with much certainty how Justices Amy Coney Barrett and Neil Gorsuch will come down on the Tennessee law.
Barrett’s remarks were the most neutral of any of the justices. At some points, she asked the same questions to lawyers on each side. And the nature of her questions focused more intently on the specific legal issues at play, making them largely technical. At other points, her questions may have suggested a lean in favor of Tennessee’s law, but it’s hard to say from the oral arguments alone. Barrett preferred to play her cards close.
As for Gorsuch, he is the only justice to ask no questions during the extensive hearing. Gorsuch is often regarded as one of the court’s most conservative justices, alongside Thomas and Alito. However, he also surprised conservatives by authoring the Bostock decision that advanced transgenderism as a category in U.S. civil rights law. So, it is not certain which way he will lean either.
Scenarios
After the oral arguments, the case looks promising for Tennessee but by no means certain. If Barrett and Gorsuch were persuaded by the polished Prelogar and side with the progressive trio, that could spell defeat for the Tennessee law. However, if at least one of those two vote in favor of the Tennessee law, it will stand. It’s also possible that the conservative-leaning justices will split, leaving a plurality opinion. (Although, in that situation, it’s more likely that a majority would back the Roberts opinion, with a fiery concurrence from Thomas and Alito.)
It’s also important to remember that oral arguments aren’t everything. Both sides have submitted extensive legal briefs to the court — as have many other parties from around the nation. One of those parties is Missouri Attorney General Andrew Bailey (R), whose state passed a law similar to Tennessee’s, which will stand or fall along with it.
In a Tuesday appearance on “Washington Watch,” Bailey expressed confidence that the Supreme Court would rule in Tennessee’s favor based on the fundamental weakness of the challengers’ position. “What they’re saying is that there’s some kind of Equal Protection constitutional right to mutilate children,” he said. “Certainly, the drafters and ratifiers of the 14th Amendment would have found that to be abominable. And certainly, that’s not in the text, history, or tradition of that constitutional amendment.”
If the court disagrees, it will unleash “a parade of horribles,” Bailey declared. “If states can’t draw distinctions to limit access to certain medical procedures or certain other items that are otherwise available to adults in the marketplace based on the child’s age, then a state can’t prohibit consumption of alcohol before 21. A state can’t prohibit a juvenile [from] getting a tattoo before the age of 18. I question at that point whether or not kids can be restrained by law in safety seats.”
However the court rules in this case, we likely won’t know for some time. The Supreme Court hears opinions in the fall and then, after thorough consideration and research, issues opinions in the late spring to early summer. It usually holds the most controversial decisions until the end of its term in late June. So, we will definitely know for sure by the end of June 2025.
SOURCE: THE WASHINGTON STAND
