Without much introductory ado, we interrupt Will's vacation to give you a thorough breakdown of United States v. Skrmetti, the trans health care case that is one of the most-watched cases of the term.
Without much introductory ado, we interrupt Will's vacation to give you a thorough breakdown of United States v. Skrmetti, the trans health care case that is one of the most-watched cases of the term.
[Divided Argument theme]
Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: So, we are recording this much later at night than we normally do. You were on a trip somewhere and this is the only time you could squeeze in. It's 10:00 PM Central Time, so I hope our listeners are impressed with our commitment to the show. I'm actually quite tired, so my analysis will suffer more than it usually does from my own natural limitations.
Will: Maybe. Maybe you'll just get funnier and more honest. I'm not casting aspersions on your normal level of funniness or honesty.
Dan: I feel like I say what I think, I try to. Okay. In terms of harsh honesty, longtime listener Colin Stretch writes in and he says he has some tough but fair feedback. He says, “The strength of the podcast is its high signal to noise ratio presents high quality information and analysis with the occasional and usually amusing digression. It suffers when the digressions become the point. June 7th episode hit the 27-minute mark before turning to any information or analysis about court business. It was, in a word, painful.” Okay. I don't remember exactly what we digressed upon, but I'm perfectly willing to believe this hits the mark. So, I can't promise we will not digress uncontrollably sometimes because the conversation just goes where it goes. There's no master plan, but we can try. What do you think?
Will: Yeah, I do think that was the episode that started with a long discussion of our audio snafus and then maybe the Supreme Court’s Justice’s toast. I don't know if that counts as court business. And it was maybe a while till we talked about.
Dan: Yeah, I feel like that's a substantive thing, right?
Will: The toast?
Dan: I mean, it's not about the opinions, but it's Supreme Court news. I think that was fair game.
Will: As we established, I wrote half a paper about it. So, I'm on the record thinking it's worth caring about, but I mean, not the toast.
Dan: Okay. And we did have one other thing. I don't think we've followed up on this yet, but a couple people wrote in to point out that the process that the Supreme Court issues so like when the court is, I guess, issuing a subpoena, an order to appear from an original complaint, I guess, the Supreme Court Rule 45 says, “All process of this court issues in the name of the President of the United States.” Did you know that?
Will: No. And I feel like that was core to the thing I was originally writing about, so it's bad.
Dan: How did you miss that? Yeah, that's right. In the Supreme Court rules.
Will: Yeah. I do try to read the Supreme Court rules once a year or so just to refresh my recollection, but somehow, I must have gotten tired before I got to Rule 45.
Dan: Is that how process works in all courts? I guess. I don't know. I've never been served by either a state or federal court personally, so I don't know.
Will: It's a good question, but something to look into.
Dan: Okay, speaking of audio snafus, Will, wherever you are in Antarctica or whatever, your Wi-Fi, I think, is not the best, and it's causing there to be a delay after when I talk and when you respond, I think it's a Wi-Fi issue, or else you're just a little bit more perplexed by what I'm saying this episode.
Will: No, I think it is a Wi-Fi issue.
Dan: Okay. I will try not to let it throw me off in this episode, we don't want to have another truth and reconciliation commission about audio snafus. We're really doing our best, and I do think we need to. I know that's a digression, but I do think we need to have some internal accountability process on the podcast for audio issues because they matter. They matter to people. If I sound like I'm phoning in using a satellite phone from the Azores while I'm underwater, it detracts from the listenability of the podcast. So, we'll try not to do that. All right. Any other digressions before we stop digressing?
Will: No, no. I apologize for doing my work from Saugatuck, Michigan. I promise not to let it become a habit.
Dan: Oh, yeah. I had one other very small beef, which is that we were going to record last week, and you were like, “Oh, I don't know.” And it got to the end of the day, and you finally were like, “I think I have to open my presents.” And what became clear was that it was your birthday and you had not told me, but you had let it slip. I think you were trying to set me up so that this episode, you could say I didn't wish you a happy birthday and you failed because I did through your slip up, I did realize it was your birthday. I did wish you a happy birthday by the end of the evening. So, you don't have that piece of ammunition to use against me today.
Will: Thank you, Dan. Happy belated birthday to you too.
Dan: Okay, so that is why it's been a little longer since our last episode. Lots of stuff going on, but we're doing our best. Okay, substance, non-digressions. What have we got?
Will: We got a lot of opinions from the Supreme Court yesterday because today we are recording on Juneteenth, which is now a federal holiday and the Supreme Court observes it and thus released their opinions early on Wednesday instead of Thursday. We are not going to talk about most of them, but we are going to talk about what I think might be the most watched case of the term. At least the most watched regular docket case of the term United States v. Skrmetti.
Dan: Yeah, I was just wondering when you said that what the other candidates would be. I mean, the TikTok case was a big deal, at least to the youth who use TikTok a lot. And obviously Trump v. CASA, big deal. Probably, the biggest Trump shadow docket case. But of the merits cases, I think that's a fair characterization.
Will: Yeah. I think CASA is maybe one of these cases. Now everybody's watching, although I think they're going to be disappointed when they realize it's not a case about birthright citizenship, but a case about nationwide injunctions. And in some literal sense, for several months, Abrego Garcia was a heavily watched case. And that felt like every time anybody in the White House went anywhere, somebody would say, “And what's happening to Abrego Garcia?
Dan: But he's back in the country and has been indicted in a face-saving maneuver by the administration. We'll see whether that holds up. I'm a little skeptical but who knows?
Will: Me too. It's very interesting. That's how it ended up. Well, we should talk about that at some point, but not today.
Dan: Yeah, but we're told there was zero chance he was coming back and it was impossible. And it was totally up to the government of El Salvador. Turns out maybe that wasn't the case. Okay, Skrmetti most anticipated merits case. What's it about?
Will: Okay, this is about a Tennessee law, SB1, the prohibition on medical procedures performed on minors related to sexual identity, which forbids some treatments for gender dysphoria, gender identity disorder, and gender incongruence in minors in Tennessee, in essence, you can't prescribe hormones to help minors transition from one gender to another or to treat their gender dysphoria. And the question is whether that's constitutional.
Dan: Yeah. And this is a law that is somewhat like laws that a bunch of states have passed in recent years, as there has been increasing concern among more conservative states about some of these medical treatments for youth and ethical implications, health implications, implications about consent and so forth. Very, very complicated issue, very fraught issue, very divisive issue, and one that really touches on a lot of live wires in our divided polity that go to just fundamentally moral questions, deep moral disagreements. I don't think we're going to resolve any of that today. We're going to try to do the law side of it.
Will: Yeah. And so just in terms of how the case has been framed, I think in litigation below, there were both equal protection challenges to this law and various substantive due process challenges. So, claims that it discriminates on the basis of sex or transgender status, and then claims that it violates various fundamental rights or the right to seek medical care, the right of parents to direct the medical care of their children. At the Supreme Court, all of those unenumerated rights claims were not in the case. So, the Supreme Court took this as a case just about the equal protection clause. Does this law either discriminate on the basis of sex, discriminate on the basis of transgender status, or otherwise impermissibly discriminate? That's the question before the Court.
Dan: Yeah. And in terms of the framework of equal protection doctrine, it works differently depending on the kinds of classifications a law is drawing. Every law draws some classification between different things. And some of those classifications are going to be totally fine as long as there is some rational purpose underlying them, some conceivable rational purpose. That's rational basis review. But certain kinds of distinctions are likely not fine or at least problematic. So, some distinctions, some forms of disparate treatment, different treatment under the law, do raise strict scrutiny. So, mainly race. What else we got?
Will: Well, mainly race. Also, to some extent--[crosstalk]
Dan: Religion?
Will: Well, sometimes religion's not mentioned in these cases because religion’s also a rights claim. But sure, religion, sometimes alienage and national origin, although not when the federal government's doing them, because, of course, that's part of immigration law, and kind of sex. Although, there's also always been some question about exactly how strict the scrutiny for sex is. And the Court says some interesting things about that and spin it as well. But something like race, national origin, sex, religion, plus or minus.
Dan: Yeah. And sex. I mean, the traditional bar exam test for sex is not strict scrutiny, but intermediate scrutiny, whatever that means.
Will: Yes. And there's also sexual orientation, which the Supreme Court has never said is a form of heightened scrutiny. The Supreme Court did of course, strike down a law in Colorado in a case called Romer v. Evans without really talking about levels of scrutiny. It struck down laws against same sex sodomy in Lawrence v. Texas without talking about level of scrutiny. And it struck down bans on gay marriage in Obergefell without talking about the level of scrutiny. Some lower courts have said, “Well, obviously sexual orientation is now strict scrutiny too.” It certainly looks like it. But formally the Supreme Court's never opined on that and there aren't really a lot of laws left that discriminate on the basis of sexual orientation. So that's just the bar exam. I think that's a question mark, I think.
Dan: Yeah. Although this opinion is certainly going to bear somewhat on that question, at least some judges views on that question. So, there's a lot going on here and there's a lot of different opinions. And let me just give you the syllabus level and then we'll break some of those opinions down. So, we start off, we've got an opinion by the Chief, unsurprisingly. The Chief tends to grab the big opinions for himself. Do you think he does that too much?
Will: No, he deserves all the big opinions.
Dan: Well, do you think it causes distress, dissatisfaction among his colleagues because I wonder, I mean, compared to Rehnquist, I certainly haven't done an empirical study. My very impressionistic view is that maybe Rehnquist did not-- I feel like anytime there's a huge case, not every time, but we can just say there's a 95% chance the Chief is going to do it. If there's not a good reason.
Will: 95 seems too high.
Dan: Okay.
Will: And Rehnquist. Rehnquist had Lopez and Morrison v. Olson--
Dan: Well, I'm not saying he never. I'm not saying he never did big ones.
Will: So, I do think one difference is when Rehnquist was Chief, the swing votes were Kennedy and O' Connor. And sometimes for the conservative five 5-4s, he had Kennedy, O' Connor, Scalia, Thomas, and himself. You mostly can't assign big opinions to Scalia and Thomas because they are not willing to do the things they need to do to keep Kennedy and O' Connor on board if things get waffly. Sometimes Scalia would, I think Justice Thomas more or less openly wouldn't. I think Justice Thomas’s view was pretty much he would write down what he thought, and he would be grateful if four other people agreed, but he wasn't [laughs] going to write down things he didn't think just to get people to agree with it.
Dan: Yeah.
Will: And then when you have the Justices who are on the fence, sometimes you want to assign them the opinion because you keep them on board better by getting them invested in it/you just say, “Look, Tony, put whatever you need to put in this opinion.” Sometimes you don't want to assign it to them because you worry that they'll flip or you worry they'll do stuff that you don't want. It's easier to keep it from doing bad things if you just don't get the pen in the first place. So, I feel like that was just a constant dynamic. Roberts, I mean, the Chief is close to the swing vote for the court now, in addition to being the Chief. So, there isn't quite that same issue as often. He is the Kennedy.
Dan: Yeah. And to the extent that he's not the swing vote, I'd say he's sort of a little bit more, trying to figure out how the right way to describe this. In the Rehnquist situation, the swing votes were to the left of him. Here the Chief, I mean, he's obviously conservative. I think saying he's more liberal is silly. But maybe he's slightly more moderate than the absolute dead center of the court. And so, for that reason at least, I would say he is more incrementalist. Is that fair?
Will: Yeah.
Dan: He doesn't always swing for the fences in terms of writing the broadest ruling.
Will: Yeah. So, as we'll talk about, I think for the most part, all the other opinions from the majority in this case, the concurrences are all people who wanted to say more than the Chief said in his majority opinion. They want to opine on additional issues. So, it's not clear if you're the Chief, who else you should have assigned it to. You could assign it to Justice Barrett so she can opine on whether transgender status is a suspect class. But you may not agree with that or may not want to talk about that. So, in that sense, I think the Chief has to assign these opinions to himself.
Dan: Yeah, I think that makes sense. You could have a situation where you assign to someone else, and then you just don't join that part. But you maybe that doesn't look as good for him. So, we have this opinion. It is joined by Thomas, Gorsuch, Kavanaugh and Barrett in full, and then Justice Alito joins a bit of it, but not all. And then we have a concurring opinion by Justice Thomas, concurring opinion by Justice Barrett that Justice Thomas joins, and then a partial concurrence and concurrence in the judgment by Justice Alito. Principal dissent by Justice Sotomayor, joined by Justice Jackson and mostly joined by Justice Kagan. And then a very short separate dissent by Justice Kagan. So, a lot of people, somebody notable is not on that list. Who's that?
Will: Not on which list? The dissenting list?
Dan: The list of people writing. So, I was throwing you a softball and you were going to hit it out of the park by saying Justice Gorsuch, is not on that list.
Will: Oh, I thought you were going to say Justice Kavanaugh.
Dan: Well, I mean, he's also not. But I think people were hopeful that Justice Gorsuch would say something here, given his opinion that is going to come up in this case in Bostock, which is the Title VII case that concluded that transgender status is protected as well as sexual orientation for purposes of employment discrimination law. And I think a lot of people saw that and they thought Justice Gorsuch maybe is woke to these issues. And we're curious if he was going to do something different here than the ordinary presumption you'd have about conservatives versus liberals. But he's given us no signals about this. He did not speak in the oral argument, did not ask a question at all.
And if you search for his name in the transcript, you see a bunch of instances where Chief Justice Roberts is doing the round robin and he says “Justice Gorsuch” and there's no answer. So, we don't know what he thinks about this. I mean, we know what he thinks in terms of what he joins. But it would have been interesting to see whether he has any nuanced views about this issue came out for him. But they did not. What do you make of that?
Will: I agree. Well, as we will talk about, the majority opinion by the Chief does talk about Bostock, and the Chief joined Bostock, too, although he doesn't get nearly as he didn't write it as Gorsuch did, but he's one of the two Justices in the majority who joined Bostock. So, the Roberts and Gorsuch are the two people most qualified to explain why you can join Bostock and not this one. I do feel this is an area I don't know, this Area of Equal Protection Clause doctrine is a tough one for somebody with Justice Gorsuch as predilections, I think, because the doctrine is so far from being framed in any formalist, obviously originalist way, although I'm not sure it's that far from what you might get if you did that. But it's just not easy for Justice Gorsuch to sink his teeth into, but it's also not obviously wrong. And so, I feel like his style just doesn't work as well in this area.
Dan: Yeah. In the sense that he doesn't have a clear text to really engage with because the doctrine has gotten so far away from text.
Will: Well, and in the sense that-- I feel like Justice Gorsuch is at his best when he's on his high horse either about how these rights are really important and we need to take them more seriously and anybody who doesn't take them seriously doesn't believe in America or about how these doctrines are all bad and it's time to get rid of these doctrines and anybody doesn't want to get rid of these doctrines as an unprincipled judicial activist and not sure the doctrine lends itself well to riding your high horse in either direction.
Dan: So, this is more of a low horse case for him, or no--
Will: [laughs] Yeah, I think it's a low horse, slow horse.
Dan: Slow horse. Well, I mean, it's not fast horse versus slow horse. It's high horse versus something else.
Will: High horse, low horse, fast horse, low horse.
Dan: Okay, so we don't know what he thinks. So, let's do our best.
Will: He joins the opinion. He joins the opinion full. He presumably believes it. [laughs]
Dan: Okay. Yes, we know what opinion he, I guess, agrees with enough to join, but we don't know--
Will: Yeah, we don't have his own explanations.
Dan: Yeah, and that would be interesting just to the extent it says more about why he joined Bostock. Someone told me that was the right way to pronounce it. I don't know if you've run that to ground, Bostock. Yeah, that's what I said.
Will: Yeah. Okay.
Dan: You were saying Bostock.
Will: I accept the correction.
Dan: Okay.
Will: So, should we talk about the two doctrinal moves here?
Dan: Yes. So, we've given you the basic premise of equal protection doctrine. So, we have to figure out what exactly this law does, like what kind of distinction is it drawing. And to the extent it is drawing a distinction on the basis of sex, although some of the more recent cases talk about gender, it probably is more helpful to talk about biological sex. Although, we can get into that nuance, the law would face heightened scrutiny. And so, we have to figure out, is this such a law? Is this a law that is drawing lines based on sex or not?
Will: Right. One slightly weird wrinkle about this. I don't know if you saw this on page eight to nine when the court is describing heightened review. And we talked about this just a second ago with sex discrimination gets intermediate scrutiny, not strict scrutiny. And the way the Chief puts it at the top of page nine is while our precedent does not make sex a prescribed classification, we've explained that sex generally provides no sensible grounds for differential treatment and that sex-based lines too often reflect stereotypes or overbroad generalizations. Accordingly, we give it intermediate scrutiny. I just thought it was a funny way to frame it. So, often it's framed as like, “Well, sex is a lot like race, only it's a little more okay.”
And this is framed a little more like, “Well, it's not that sex is generally forbidden, it's just that it's often a bad way to regulate.”
Dan: Yeah. So, you think he's watering it down a little bit there?
Will: Yeah. Watering it down and really making sex, not just race discrimination light.
Dan: Yeah, but I mean, I think that's fair. In the sense that, even Justice Ginsburg, famous defender of sex equality, and who wrote the famous case VMI case, about Virginia Military Academy, which wanted to remain single sex, and the court said, “No, you can't do that,” acknowledges that there are actual legitimate differences between men and women, and the law can sometimes take account of those. And so, he's saying that, “Look, if laws are drawing these distinctions, they often reflect stereotypes or overbroad generalizations, and those are bad.” So, we got to apply a little bit of extra scrutiny.
Will: Well, so one way to think about that is law sometimes takes account of sex. And in cases where it's really important, it's okay because it passes intermediate scrutiny. And that's like the male only draft and different sexes in bathrooms and prisons and other special contexts, those are sex discrimination, but they're okay because they're important. That's, I think, one way to think about those things. Another way to think about them is that maybe some of them are not sex discrimination at all. And that's the conclusion that the court makes about SB1, where he says, even though, it's true, that these medical treatments and procedures are bound up in sex in some sense, like sex is part of how we define gender dysphoria. And that doesn't make a sex discrimination because it's a medical treatment.
And medical treatments are frequently bound up in sex. Breast cancer treatments are approved in women and not men. And you could think, yes, and that's permissible because it's a really good idea, rather than, “Oh, it's not at all. Not even sex discrimination.”
Dan: Yeah. And so, his maneuver is to say this is regulating a particular medical procedure. Whereas Justice Sotomayor's dissent really takes issue with this argument. She says, “No, it is a sex-based classification, because if you take the same treatment and you're giving it to a biological female who identifies as male, that's forbidden. But if you give puberty blockers to a biological male who is going through early puberty and they're just trying to delay it so he's on track with his peers, that is okay.” And so, she's sort of saying, “Well, it's the same if all you're doing is subbing out the gender of one of the patients involved that makes it a sex-based classification.” And the Chief is basically saying no, because once you make that substitution, it's a different medical treatment.
There's a different medical giving a biological boy hormone treatment that is consistent with his gender of birth but is either to maybe delay puberty because they're going through early puberty, or to increase, amp up puberty because he has a hormonal deficiency. That's just a fundamentally different medical treatment. What do you think about this dispute?
Will: I find this tough, but I guess what I find funny, and I assume you thought the same thing, is it reminds me a lot of the dispute in Bostock.
Dan: Yes.
Will: Right. So, in Bostock, the claim was, if you are firing a gay man because he's gay, is that firing him because he's a man or because he's gay? And then somebody says, “Well, suppose he was a woman and she was still attracted to men,” then you wouldn't fire her. And the other person would say, “Yes, but that's not the equivalent.” At that point, the person's no longer gay. By changing their sex, you change something else about them. So, it's a little tricky to figure out how that argument works here and not in Bostock.
The majority has some answers that the minority says in the context of sexual orientation, when you switch somebody's sex, you automatically switch their sexual orientation because their sexual orientation is just a function of their sex and the sex of the other person, they're attracted to. Whereas here there's a whole range of hormonal treatments, diagnoses, different reasons you might give puberty blockers or other hormones to boys and girls based on precocious puberty developments that aren't in accordance with their biological sex, that aren't in accordance with their identified gender, etc. So, you can't just do a simple function when you do the swap. But I didn't find it totally satisfying. It might work, but I didn't find it totally satisfying. What was your reaction?
Dan: I get tied up in knots with these, and I actually don't like you think they're hard. And at a certain point it just feels like word games almost in the sense that you can describe these things either way. And I wonder whether that debate, which seems like philosopher's debate, is really obscuring the questions we should care about. I don't know, because you end up in all these thought experiments about counterfactual so what if you change the gender of this person and the sex of this person, and is the law stopping them or not stopping them? But those are all baked in with this question of what things are you holding constant in the hypo. And I don't know, I just don't have a clear intuition about how to answer that.
Will: So, that's why I think this reframe of what is sex discrimination might be doing a decent amount of work here, is that in the race discrimination context, the court is pretty wedded to a pretty formalist account of like, “Are you using race? If you're using race, you're engaged in race discrimination.” And that's always very suspect. And what the court seems to be saying is sex discrimination is quite different. The ultimate question is, are you relying on something that's rationally irrelevant, which sex often is, but not as often as race? And so, in these contexts at that, the question is treating gender dysphoria differently from precocious puberty irrational or something, then the answer is no.
Dan: Doesn't that in theory go to a different stage of the analysis, the kind of questions you're talking about?
Will: Well, that's what's weird. The refrain is something like the use of sex is so often irrational that when the state uses sex to regulate, we get really suspicious. But, yes, there is something a little circular here, but I do think that means that the court is just trying to step back and say, “Is this a case where the fact that sex is being used is like a red flag.” Like, wow, why would anybody use sex here? That's probably suspicious.
Dan: Yes, but we haven't decided whether they're using sex at all. At least the court is trying to answer that question.
Will: Right. I do think there's a way in which the analysis here is a little circular because there's a way in which the court just thinks this is a medical area, there are high judgment calls, and ultimately these seem reasonable to us, and therefore they must not be discriminatory because they're reasonable. And that's not really the order the analysis is supposed to go in. But that is maybe the big picture.
Dan: I mean, in terms of what's actually going on underneath the surface, you mean.
Will: Yes. Should we think about this as sex discrimination or not? Well, if we think about this as sex discrimination, well, we might be forced to say it was unconstitutional, but it's reasonable. We don't want to say it's unconstitutional and therefore we should say it's not sex discrimination. So, we don't have to say that it's unreasonable.
Dan: Yeah. I mean, they're not saying that exactly.
Will: No. And obviously that would be results oriented reasoning in almost a literal sense. But it does feel like that's going on a little bit, doesn't it?
Dan: I mean, I certainly think that is in the background. And to the extent that it seems right that these philosophers’ word games seem a little bit indeterminate to me, it does seem like those ultimate considerations maybe are doing some of the work in terms of how you resolve them. Can we try to play around with one of those, though, for a minute?
Will: Sure.
Dan: So, if we go, it's going to require flipping back and forth a little bit, but Justice Sotomayor has a hypo that she puts forward that apparently comes from Yale philosophers. So just reinforcing my view that this is a philosopher's question. She has a hypo from amicus brief for Yale philosophers. It says, “Suppose Tennessee prohibited minors from attending any services, rituals, or assemblies if done for the purpose of allowing the minor to identify with a purported identity inconsistent with the minor's religion. No one would seriously dispute that such a rule classifies on the basis of religion.” Okay, do you buy that? The idea is this is analogy that is obviously a law that classifies on the basis of religion. And that means it's exactly like this. And that means that you have to say this is a law that classifies on the basis of sex. To the extent the law is saying, “You can't do stuff that is inconsistent with biological sex,” basically.
Will: Yeah. I mean, I love the analogy. I do wonder. I mean, the law is obviously unconstitutional. It's not obvious that the thing that's unconstitutional about it is that it classifies on the basis of religion as opposed to that it restricts the free exercise of religion for no good reason. And I guess that's the problem, right?
Dan: Yeah. That distorts how you're thinking about it. And so, it just doesn't really work to come up with another example because if you come up with an example that isn't religion, then you're in rational basis world. And if you come up with an example that's sex, you get an immediate scrutiny. But that just takes us back to the very problem in this case.
Will: Right. Like a different version that I think people do confront in the religious classification version is take a law that bans the handling of live snakes in front of large groups of people. Now in a way that is a classification on the basis of religion because there are a very small number of religions for which the handling of snakes in front of large groups of people is like central to the religion. But you might also just say, “No, it's just a prohibition on handling live snakes in front of large groups of people, which happens to disparately impact two religions but not others for good reasons.” And I think that's what the majority would say here is, they'd say, “The ban on the prescription of puberty blockers and hormones through gender dysphoria is not classifying anything. It's just banning a particular thing.”
Dan: Yeah. Although a particular thing that does not even make sense conceptually outside the context of sex, right?
Will: Right. I mean, so maybe the difference between a ban on puberty blockers to treat gender dysphoria and handling snakes in front of large groups of people is you can at least conceptually understand the idea of handling snakes in front of large groups of people for nonreligious reasons, even though I don't know that anybody does.
Dan: You could be a snake news snake charmer or something.
Will: I guess. Yeah. I don't think they touch the snakes though, usually.
Dan: Yeah, I'm not.
Will: They play the flute at them or something.
Dan: Yeah. I'm not super familiar with the practices of snake charmers. I don't know if we have a lot in this country.
Will: Right. But you could instead imagine a law that bans all animal sacrifice maybe that is conceptually inseparable from religion. And that's the Church of Lukumi Babalu Aye, where the Court says that does target their religion. So, there's something, I mean, Justice Sotomayor has a point. She's grasping at something here, but it's not clear to me you can get firm enough footing on the free exercise cases to then confidently say what they mean for the gender identity cases.
Dan: I will say that the majority's Chief Justice's response on this I found not really responsive-- this is on page 14. His response basically is just like, “Well, that would be unconstitutional and this isn't.”
Will: It's a little better and a little worse, [laughs] I think he says, but a prohibition on the prescription of puberty blockers and hormones is simply a prohibition on the prescription of puberty blockers and hormones. [laughs] Whereas a law prohibiting attendance at a religious service might trigger heightened scrutiny. A law prohibiting the administration of specific drugs for particular medical uses does not. So, I think that's trying to get at the point that religion is different from drugs, but it's not pellucid what the response is.
Dan: Yeah. I'm trying to think if we can come up with a different hypo. So, what if we had a law that said “No one can get a circumcision if it's not required by their religion? The only people who can get circumcised are those whose religion demands it and not those whose religions are squeamish about the practice.”
Will: Well, that's probably okay because that's a religious accommodation. If you say we have a categorical ban on circumcision and then a refers trial accommodation for anybody whose religions require it.
Dan: That's interesting. I guess I was thinking about it from the other angle. Let's say this is generally something that's allowed. And then we have this new law that comes in and bans it for everybody who is not doing it consistent with their religion. That seems more like this.
Will: Well, I mean, this is what's tricky. And so, what always makes religion tricky is because you could describe the same law as a ban with an accommodation, and then that's presumably okay.
Dan: Yeah. Okay. So that doesn't seem to resolve the question, at least in the view of the majority.
Will: Yeah.
Dan: Okay.
Will: This was true of Bostock, too of course. There's a way in which, again, if you step back and think about what this case is about, doesn't it feel like this case is about discrimination against transgender people more than it is about sex discrimination? The real question is, “How should the states be required to treat transgender minors?”
Dan: Yeah. Although, going back to Bostock, the analysis there is basically like, questions about discrimination against transgender people are just questions about sex discrimination, right?
Will: Yeah. I mean, that's the argument. And I guess in Bostock, the point of dissent was maybe logically, that's true. Maybe logically those two things are inextricable. That's, I guess Bostock includes for Title VII purposes, but in a more common sense or cultural sense, we know those are two different issues and maybe we just need to confront the other issue, which next the court confronts, to say, “Well, okay, should we just treat this as transgender discrimination?” And say that's a quasi-suspect class that's politically relatively disadvantageous and has phased a history of discrimination and therefore is also entitled to some heightened scrutiny on its own.
Dan: Yeah. And what is the answer there?
Will: All right, so there the Court says, “We're not going to tell you that. We're not going to tell you whether or not transgender status is a form of quasi heightened scrutiny because SB1 does not discriminate on the basis of transgender status.” [laughs]
Dan: Yeah. So, more of the moves they were just making in the previous section, right?
Will: Yeah. Well, it's with a new wrinkle, which is essentially with the Geduldig move. So, let's assume it's true that only transgender individuals seek puberty blockers and hormones for gender dysphoria.
Dan: Which is definitionally true, I think.
Will: Right. But not all transgender individuals do. So, a law that bans a particular treatment that only transgender individuals seek doesn't necessarily discriminate against transgender individuals. It's discriminated against a subset in the same way that, as the Court famously held, controversially held in Geduldig v. Aiello a law that targets pregnancy that, say, doesn't cover pregnancies’ related disabilities, or has some rule about people who are pregnant, the Court has said it's not the same. It's not sex discrimination because not all women are pregnant.
Dan: Yeah. And so, we have an interesting response to that. Again, another hypo from Justice Sotomayor, who really doesn't like the Chief Justice's use of Geduldig basically just says, “This case was heavily criticized, everyone thinks it has faulty reasoning, etc.” But she says, “Imagine we saw a law that deprived access to health insurance to all individuals who have ever or may someday menstruate that law could not possibly be sex neutral because not all women menstruate.”
Will: Yeah. So, then the Chief has a very interesting response at footnote 3, which is maybe one of the most interesting things. A majority of the court has written about Geduldig in a long time, that law is different for both SB1 and the law at issue in Geduldig. Because SB1 regulates medical treatments. Geduldig deals with the regulation of pregnancy. The dissent's hypothetical law, in contrast, does not regulate a class of treatments or conditions. Rather, it regulates a class of persons identified on the basis of a specified characteristic. Neither our analysis nor Geduldig speaks to a law that classifies on such a basis. So, I take it they're saying a law about pregnancy is not necessarily a law about women, but a law about everybody who may one day get pregnant is a law about women.
And the Geduldig exception can't be read that broadly, that there's a difference between targeting a condition and targeting people who might have the condition.
Dan: Yeah, I thought that was interesting.
Will: That's very interesting.
Dan: Yeah. One thing that also is interesting about this argument is the more, I guess, you lean into some of these questions about transgender status, I wonder whether that law stops looking like sex discrimination in the sense that we now think, or that we're supposed to think lots of men menstruate, you need to have period products in men's restrooms as well as women's restrooms, and that there's this separation between gender and biological sex in that way. Does that change to the extent that it's being embraced? Does that somehow reduce the force of that hypothetical, or is that wrong?
Will: So, I think that would reduce the force of the hypothetical. I think if the members of the Court accepted the view that plenty of men menstruate and plenty of women are menstruation ineligible and so on, that would dilute the force of the hypothetical. It's interesting that Justice Sotomayor puts the hypothetical forward anyway, so she doesn't seem bothered by that. And the majority does not help themselves to that reaction. So, they're all much more traditionalist on their way of thinking about those questions, which just shows how much this challenge is swimming upstream.
Dan: Yeah. Okay. What else have we got?
Will: Should we talk about the separate opinions?
Dan: Yeah, I think so. Several to engage with here. So first up, Justice Thomas. Very interesting. I'm going to say it'll be a quite controversial opinion.
Will: Why is that?
Dan: Well, he really gets into the substance of the debate about whether these medical treatments are wise, and he does so in an interesting way. The thrust of his opinion is basically people are coming in and trying to tell us that this is a medical consensus, and courts just need to rely on that and then overrule legislative judgments to the contrary. And he's got an institutional democracy-based argument, which is just that it doesn't work that way. We don't just let the scientific experts decide, we let legislatures decide and they can take those views into consideration, etc. But then some people are going to say this is inconsistent. There's suggestions of that argument and Justice Sotomayor's dissent. But then he says, “Okay, but then let's just dig into this,” all this medical evidence.
And he spends quite a while digging into it and makes the case that medical science is much more divided. There's a lot of problems with the supposed expert consensus that the advocates are pushing in as part of the litigation strategy. What do you think? Did you think those two approaches were inconsistent?
Will: No. I mean, I will say I personally always prefer the opinions that say this is a hard policy area, people disagree, but don't then dive in to assert one side of the debate or give you a sense of, in detail, one side of the debate. I personally prefer the opinions that have a lighter touch on the policy issues than this one does.
Dan: Yeah.
Will: But I do think the underlying point about to what extent in constitutional law should the Supreme Court defer to the supposed consensus of experts in a field is a big question. And I think Justice Thomas is right that sometimes a group of people show up at the Supreme Court claiming to be the expert consensus in the field and they aren't. And that's an important reason not to make constitutional analysis turn on the consensus of the experts in the field.
Dan: Yeah, I mean, I think that point could be made with less effort devoted to the substance of the medical consensus or not. I think it would be relatively simple to establish, “Hey, look, there's actually a lot more disagreement about this. Things are moving. This is very evolving.” And so, this maybe detracts a little bit from the force of the first point. It just makes the first point which gets a little bit less time because it's in some ways a simpler, clearer argument than going through a bunch of social science evidence and historical background about how these arguments have evolved. And maybe the strategy distracts a little bit from the crisper separation of powers argument.
Will: Right. But it may also be that the strategy is necessary precisely because of the thing it critiques. So, if you think that there is a silencing of some members of the medical community who disagree with the thing that's trying to be proclaimed as the consensus, then people may not know about, all the things Justice Thomas has to cite here, or it may be that giving them airtime in a Supreme Court opinion is itself necessary to show what he wants to show. I'm not sure about that, but my guess is that's part of why he is doing it.
Dan: Yeah. He preserves in a footnote his argument suggested elsewhere that maybe the equal protection clause doesn't actually prohibit discriminatory legislative classifications at all, but does not resolve it and says it hasn't been briefed here. So that would be interesting, but we don't get into it. Okay. So, it's an interesting read. It comes across that he has pretty strong views about the underlying substance of the issues. I think this is more than you would normally do if you're just trying to say, “I don't know, could go either way.” He ends up basically saying, “Look, all of the arguments on the other side, the pro gender dysphoria treatment side, are being driven by ideology.”
Will: Yeah. And I do think Justice Thomas is somebody who I think has been skeptical of what he sees elite consensuses in a lot of different areas [laughs] for a long time. So, in that sense, I'm also not surprised to see him being the one to say this. Should we talk about Justice Barrett?
Dan: All right, Justice Barrett. And this is an opinion that Justice Thomas joins. So, he shares her views.
Will: Yeah. This is interesting.
Dan: Yeah.
Will: So, Justice Barrett writes separately to opine on the question of whether transgender status constitutes a suspect class. And she says, “No, it doesn't.”
Dan: Yep. And several reasons for that. And, she says, “At the outset, we really don't do this a lot. We really are pretty restrained in saying there are other suspect classes.” For good reason and so let's try to figure out how she thinks you should go about that analysis. So, looking back at the ways in which the Court has described this inquiry in the past, the famous footnote 4 in United States v. Carolene Products, built on that, the courts have looked to whether the group in question exhibits obvious immutable or distinguishing characteristics that defines them as a discrete group, whether the group has, as a historical matter, been subjected to discrimination, and whether the group is a minority or politically powerless.
Will: Yeah.
Dan: Okay. And then she thinks that transgender individuals do not pass this test. So, let's figure it out. So, she says, “First, no obvious immutable or distinguishing characteristics. This is a trait that is not ascertainable at the moment of birth. And some people detransition and begin to identify again with the gender that corresponds to their biological sex. So not innate, not immutable.” Not a discrete group. This category is large, diverse, and amorphous. The word transgender can describe a huge variety of gender identities and expressions. So not an easily ascertainable characteristic that is fixed and consistent across the group. Okay.
Will: Yep.
Dan: And then she also notes that holding that transgender people constitute a suspect class would require courts to oversee all manner of policy choices normally committed to legislative discretionary. And I think that certainly seems right, that the more groups you give suspect classifications to, the more the courts are going to have to wade into these substantive policy morasses when they're applying either strict or intermediate scrutiny.
Will: Yeah.
Dan: And then there's this other question. Well, whether, as a historical matter, has the group been subjected to discrimination? And she says, “No.” And this is surprising. I think if a lot of people just said, “Just we're faced with this question, have transgender people been subject to discrimination historically?” People would say, “Absolutely.”
Will: Right.
Dan: So why not?
Will: So, Justice Barrett says that what we're looking for in this factor is de jure discrimination by the state. Like the black codes or coverture laws for African Americans and women, respectively. That's the kind of discrimination that is relevant to recognize a suspect class, because the fourth amendment is about constraining state action. And so that kind of presence of unconstitutional discrimination tells us, “Okay, we've got to be really vigilant for this group.” But private discrimination or that's not de jure unconstitutional discrimination, it doesn't trigger that same inquiry. This is a new move.
Dan: Yeah. I had never thought of this when I learned about this test for suspect classifications back in law school, I wasn't thinking about it at this level. What was your intuition about this?
Will: Well, so, she does two things. She refers to both de jure discrimination and discrimination by the government. I think she's definitely right that it's discrimination by the government we care about, because private discrimination is not necessarily unconstitutional. And so widespread private discrimination doesn't tell us that much.
Dan: Couldn't it tell us something about when the government draws distinctions, whether the government has a good reason or not?
Will: Well, I guess there's a big question of why is this even a factor at all? What is this trying to tell us? But I think there are areas where the government is not allowed to discriminate, but private people are allowed to discriminate. And so, the fact that private people regularly discriminate doesn't-- I'm just not sure how much it tells us. Okay, but the idea that you also need de jure discrimination by the government rather than de facto discrimination, because there's a claim that well, look, even if there weren't laws that explicitly targeted transgender people, there were lots of laws about various morality laws and vice laws that were in fact enforced as anti-trans laws. It's not as clear to me why that doesn't matter.
Dan: Is she clearly saying that it has to be a law?
Will: Well, she says de jure a lot. I mean, but she's sort of-- crosstalk]
Dan: But she's sort of just using that to draw a distinction between private and do you think that she's meaning to draw the distinction you're drawing? She may be. I'm just not sure.
Will: I'm not sure either. I mean, given that in equal protection doctrine, equal protection history, we frequently draw a distinction between de jure discrimination and de facto discrimination by the state. And I'm sure she knows that. She's a law professor. I assume that when she wrote de jure discrimination over and over again, [laughs] she was thinking, and therefore I don't mean de facto discrimination. But I agree. That's not really explained or spelled out.
Dan: Yeah. She disclaims her academic career in this opinion, though. Do you notice this nowhere, pages 10 through 11, she says the litigants have not thoroughly discussed whether transgender individuals have a history of de jure discrimination. And because the group of transgender individuals is an insufficiently discreet and insular minority, the question is largely academic. [Will chuckles] So, it's academic. It's not worth thinking about. It's stupid.
Will: I don't think she's not thinking about, she says-- But, yeah, fair enough.
Dan: Yeah, it's just a little dismissive. I mean-- it's fine. But I mean, it's a good word there. I think it is a word that if I were writing that sentence, I might use. But it does suggest a little disdain for the academic enterprise when you lean that way.
Will: Yeah, fair enough. So, I will say I like this opinion a lot, although it just reminded me, I never really understood this test for suspect classes. And I think somebody famous like John Hart Ely wrote about this already. But there are lots of groups or behaviors that have long been targeted by the state for discrimination and are politically powerless and so on. And sometimes that's okay because it's something that we think is bad and the state is allowed to prohibit. So, maybe immutable is doing a lot of the work, or maybe some other value judgment is doing a lot of the work.
Dan: Yeah, I mean, this whole area has been a big question in constitutional theory. There's been a lot of criticism. John Hart Ely built his whole constitutional theory on Carolene products Footnote 4. And it's a beautiful theory, but then there's a lot of really heavy criticism of it, suggesting various problems with it. So, I don't know. It may not be the right test even to start with, but Justice Barrett seems to be taking the test for granted. This is the test we have.
Will: Yeah. And I appreciate her willingness to tackle the issue. I do think that's helpful. And frankly, it might have been more helpful for the majority than it.
Dan: Yeah. Okay, so two votes there for resolving that question in the negative. A transgender individual is not a suspect class. So, any laws affecting them and directly classifying on the basis of transgender status would just get rational basis review.
Will: Yeah.
Dan: Okay. Justice Alito, what's his view?
Will: All right, so Justice Alito also wants to take on this issue. He has his own view on this exclamation question. Then he also has his own view about why SB1 does not classify on the basis of transgender status.
Dan: Yeah. And he doesn't like the part of the majority opinion that deals with Bostock. He really doesn't like that case. So, he seems to just not. He says he respects it as a precedent, but seems to not love the way the majority's handling it and just wants to wash his hands of it.
Will: Yeah. On this question of heightened scrutiny for transgender status, both he and Justice Barrett say in footnotes, “I agree with the other opinion, although we have differences in emphasis.” What do you understand their differences to be?
Dan: I was hoping that was one of those things I was hoping you were going to tell me. So, I guess one thing that he says that's interesting is he actually says maybe SB1 actually does classify on the ground of transgender status. So, disagreeing or suggesting possible disagreement with the majority's analysis of that question. Maybe this is a classification on the basis of transgender status.
Will: Yeah.
Dan: And sort of he says, “I'm not going to get into that.” Let's just assume for sake of argument that it does make such a classification and then go into this question about whether that should implicate a quasi or a suspect or a quasi-suspect class. And he says, “No, he does seem to look to similar factors.” And he nods to Carolene Products. He talks about this question, about participation in the political process, some.
Will: Yeah. It seems to me like the big difference, I guess, is his claim about how he got here, that we just got to understand this whole suspect class thing. It's really about race, and in particular, it's about black people.
Dan: Yeah.
Will: And this whole doctrine is our way of saying, “Look, we all know that discrimination on the basis of race, and especially discrimination against African Americans is unconstitutional and bad. And then this is a doctrine designed to ask, is this a group that's enough like that it showed the same rules?”
Dan: And that's why national origin and ancestry also get similar treatment because of their proximal relationship to race.
Will: Right. And then sex has a little more complicated story, but we're probably asking the same questions. But he's really maybe even more than Justic Barrette saying, “Look, heightened scrutiny is an extraordinary thing.”
Dan: Yeah.
[chuckles]
Will: We've done it for extraordinary groups that have faced extraordinary discrimination, and we're not really going to do it again.
Dan: Did you see his citation, Korematsu?
Will: No. For a proposition?
Dan: Page 13. I want you to look at it and react to it in real time.
Will: Okay. Let's see. At around the same time, the court treated national origin and ancestry of suspect classes largely because of their proximal relationship to race. See Oyama v. California, Korematsu overruled by Trump v. Hawaii.
Dan: Yeah. The overruled by Trump v. Hawaii is interesting.
Will: Yes.
Dan: Because as you recall, that case said Korematsu has been overruled by the court of history.
Will: Yes.
Dan: Which is not the same thing as the Supreme Court I think.
Will: I continued to believe that the correct Bluebook notation for that is Korematsu v. the United States overruled by the court of history as recognized in Trump v. Hawaii, not overruled by Trump v. Hawaii.
Dan: Trump v. Hawaii did not do the overruling.
Will: Well, it claimed not to.
Dan: Yeah, it just said it's already been overruled.
Will: Trump v. Hawaii clearly claimed that Korematsu had already been overruled. But everybody has since treated Trump v. Hawaii as if it actually overruled Korematsu, as if just nobody believed that part of Trump v. Hawaii, which is sad.
Dan: Yeah. Court of history. I like the court of history.
Will: Yeah.
Dan: Okay, so that makes sense. Really these rules are trying to get at stuff that is race or really tied up with race. And that creates a little bit of a problem for gender. He says, “Well, it's not the same as race, but we have recognized that such classifications warrant more careful inspection than is provided by ordinary rational basis review.” And this heightened scrutiny was developed in recognition of the fact that classifications based on sex share many features with classifications based on race. Okay, so doesn't this end up walking back from his approach, because it seems to me that the test for suspect classes is also just generally trying to do that same thing. Like, “Is this a group that faces discrimination and all that stuff, like race,” right?
Will: Yes.
Dan: Does it give away the game to say that you accept that you can make that move for gender?
Will: Well, he doesn't quite say you can either. He says, “We've never held that sex-based classifications are suspect.”
Dan: Yeah.
Will: So, now, of course, that's I think all that the plaintiffs are asking for here is, okay, we'd like some heightened scrutiny, whatever it is they're getting over there. You can call it what you want. I mean, that's why I do think in the end, his analysis and Justice Barrett's analysis end up overlapping a lot and having to tread a lot of the same ground. But I do see the point that one way to parse this is just to pick up the test and apply it at the bar exam. And Justice Barrett’s is close to that. And another way to do this is to say, “Look, we've got to keep in mind what the test really is here or what we're really talking about here.”
Dan: Okay. And so that brings us to the Sotomayor dissent, joined by Justice Jackson in full and Justice Kagan as to all but part five. And I think we implicitly talked about the dissent insofar as we talked about ways in which the majority was responding to some of the arguments in the dissent.
Will: Yeah.
Dan: But the opinion does what you might expect it to. Gives us a factual background that's designed to highlight the harms that gender dysphoria is really trying to address, the suffering that youths experiencing gender dysphoria go through and why these medications and treatments really may be necessary in certain cases. And that frames the issue in a very different way than the other opinions, motivates the analysis a bit.
Will: So, one question is, do you think the dissent is part of the reason Justice Thomas felt the need to write the concurring opinion the way he did?
Dan: Absolutely. So, if you look back at his opinion, he has a burn on Justice Sotomayor in the final paragraph where he just says, “The Court today reserves to the people, their elected representatives, and the democratic process the power to decide how best to address an area of medical uncertainty and extraordinary importance. That sovereign prerogative does not bow to ‘major medical organizations.’” And he's quoting Justice Sotomayor's opinion there.
Will: Yeah.
Dan: And then he cites himself in Students for Fair Admission, noting that experts and elites have been wrong before and they may prove to be wrong again. So, yes, I do think it's highly motivated by desire to respond to her opinion, which does engage with the trust the science kind of arguments.
Will: Right. And you might think once she's putting a lot of these specific stories and examples and evidence in the US Reports, that maybe he might think it's important to have some other stuff in the US Reports, too, even if it's not as crisp and it detracts from his other kind of-- [crosstalk]
Dan: Yeah
Will: Okay, so what about Justice Kagan?
Dan: You go ahead.
Will: So, Justice Kagan joins most, but not all of the lead dissent. And writes separately to say, “For all the reasons Justice Sotomayor gives, Tennessee's SB1 warrants heightened scrutiny.” You know that means blah, blah, blah. “I take no view on how SB1 would fare under heightened scrutiny, and therefore I do not join Part Five. The record evidence here is extensive, complex, disputed, never addressed the relevant issues. The government and the plaintiffs both asked the court not to actually apply heightened scrutiny, but only to remand. So, I would both start and stop at the question of what test SB1 must satisfy.” What do you make of this?
Dan: Well, it's interesting because going back to part five of Justice Sotomayor's dissent, I was reading that, and I guess I was not 100% certain from reading that whether she actually is completely resolving the question of how intermediate scrutiny applies. Does she do that?
Will: Well, she says there's no constitutional justification for the law.
Dan: Yeah. I mean, that's fair. Although I really see this section as still fighting the fight about should this get rational basis or not.
Will: Yeah. But Justice Kagan seemed to think that she was saying it would fail rational basis, and-- Sorry, that would fail heightened scrutiny.
Dan: Justice Kagan is saying that?
Will: Justice Kagan seems to be reading Justice Sotomayor as saying the law fails heightened scrutiny.
Dan: Yes.
Will: And Justice Kagan apparently thinks the law might survive heightened scrutiny.
Dan: But I mean, look at page 30 of Justice Sotomayor's dissent. “The majority's choice to avoid applying intermediate scrutiny is all the more puzzling because this court need not itself resolve these questions or wade into these debates. All the United States requested of this court was confirmation that intermediate scrutiny applied. On remand, the courts could have taken due account of recent developments that are cited by the majority suggesting need for legislative flexibility. Yet the majority inexplicably refuses to take even the modest step of requiring Tennessee to show its work before the lower courts.” And then she says in the concluding paragraph, “This case presents an easy question whether SB1's ban on certain medications contains a sex classification.” And so, she's concluded that it does. That paragraph doesn't clearly resolve the question of whether it's unconstitutional, right?
Will: Yeah. I mean, Part Five does say a bunch of stuff about how you're supposed to apply it. Like, it says, “We do have to second guess legislative choices. That's the only way to tell legitimate regulatory policies from discriminatory ones.” It says, “These are the kinds of things we're going to have to ask the state to show.” So, Justice Sotomayor is saying, “Look, there might be more evidence presented eventually.” After all, this whole case only happened at the preliminary junction stage. And so, Justice Sotomayor is not prejudging what the facts will be but is maybe giving us more of a sense of what the legal standard will be applied to those facts. And Justice Kagan's maybe not even agreeing with that. It's also possible that Justice Kagan actually is more skeptical of the law than Justice Sotomayor. Maybe she doesn't like the part where Justice Sotomayor says, “Well, look, the state can go back and possibly save the law presenting all this evidence.” Maybe Justice Kagan thinks, “No, they can't do that.”
Dan: Or maybe she thinks it passes.
Will: Yeah.
Dan: Hard to know.
Will: It's interesting. I mean, I'm not against it, [laughs] but it's all a little mysterious. And I think, often dissents don't bother to do that kind of thing. Those are the kinds of things that, if you're writing the majority, you really have to sweat the details like, what would the scope of the remand be? It's a major question in the majority. I think often people all join a dissent, even though it's clear they don't have a recommendation themselves about what the scope of the remand would be if they were in the majority. It's interesting that they're doing that here. I don't know that it's important, but it's interesting.
Dan: Yeah. Okay. Well, that's the opinion.
Will: Can I ask one big question with this case?
Dan: Okay. Go big.
Will: Okay. Well, this was obviously going to happen, right? The case was obviously doomed from the day it was filed in the lower courts.
Dan: That seems right to me.
Will: So, what was the point of bringing these cases, and what was the point of bringing them to the Supreme Court?
Dan: Yeah, I don't know. There's a long form article in New York Times that came out today or yesterday asking that question that without getting into all the details, seems to say this was being brought by transgender rights advocates who maybe-- I mean, this case was brought by the United States, but there was a lot of pressure being applied behind the scenes by these advocates who maybe didn't have a great strategy and were just trying to have their day in court and maybe got out in front of where the court was and I guess have done harm to the issues that they were trying to advance. Well, it does not conclusively resolve, but it makes it appear to be exceedingly unlikely that transgender status is a suspect classification.
Will: Yeah. And now, again, maybe that was already exceedingly unlikely. Also, it just has said some interesting things with the law of sex discrimination that are not obviously good for the cause and maybe bad. So, I'm just confused what the plan was. I mean, I get that when there's a law you think is unconstitutional and people want to challenge it, that's their right. It's a free country. But as a movement strategy issue, I guess maybe I'm just not a big picture enough. I'm not thinking big enough.
Dan: Maybe or you're thinking exactly big enough. But, yeah, I mean, this was clear what was happening here. Another interesting thing we didn't get into, which is this is a case where the Trump administration didn't even feel like it was necessary to fully abandon its position or to fully abandon the case. They didn't try to dismiss the case or formally withdraw their briefs. They just sent a little note that said, “We've now determined that SB1 does not deny equal protection on account of sex or any other characteristic, but believes that the confluence of several factors counsels against seeking to dismiss its case in this court. And one way to interpret that is the government realized this case was going to come out the way it wanted to, and it's actually better if this is the result you want. Better to just let the court do it, and then you've got the precedent.
Will: Yeah, I think that's right. And the court drops a couple footnotes about that. I do think the question of why the court even could resolve the case in light of the fact that both of the named parties now agree maybe needs a little more work.
Dan: Yeah, we seem like we're just glossing right over that to get to the answer to this question.
Will: Yeah, it's a little like Windsor, I think the plaintiffs had a cross petition. The court had granted their cross petition. I feel a little better about it, but I guess nobody's sweating the details on that one.
Dan: Yeah. Okay. Well, this is a really interesting one. One of the biggest of this term. Perhaps the biggest. And we could keep going, but I think both of us need to get to bed. It's about 11:30 in Central Time. You're in Michigan, does that mean you're in Eastern time?
Will: Yeah, it means it's well after midnight here.
Dan: Oh, I'm sorry. I'm sorry. No, not really. Because it's not my fault, right? This is your fault.
Will: [laughs] Thanks, Dan.
Dan: We would have been recording during the day, but for your vacation.
Will: It's true.
Dan: Okay, now, I am sorry. I am sorry. I mean, not in the sense that I'm bearing any responsibility, but I'm sorry that this has happened to you.
Will: We had an amazing hike to Oval Beach. It was worth it. And thank you for being with us.
Dan: That sounds lovely.
Will: All right, thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks to the listeners who've been sending in feedback, even tough criticism that maybe we deserve to help keep us on track sometimes.
Dan: We can take it. So, please rate and review on the podcast app of your choice. Visit our website, dividedargument.com for transcripts, go to our store.dividedargument.com for merchandise, blog.dividedargument.com, for posts by the larger, extended Divided Argument universe. Some of those folks we're going to have on the show at some point in the future. Send us an email, pod@dividedargument.com and leave us a voicemail 314-649-3790. If there is a delay between this and our next episode, it will because we got stuck in a digression and can't figure out a way to get ourselves out of it.
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