The Skrmetti Opinion the SCOTUS Conservatives Seem to Want "Won't Write"
One can never tell with certainty how the Supreme Court will rule based on the statements and questions from Justices during the oral argument. Nonetheless, I agree with the general consensus that, based on last Wednesday's oral argument in United States v. Skrmetti, at least five of the Court's six conservatives are likely to vote to uphold Tennessee's ban on gender-affirming care for minors. In today's essay, I'll explain why I am dubious that anyone will be able to write a persuasive opinion for that result relying on the grounds that most of the Court's conservatives apparently favor--a principle of deference to state legislation regulating medical treatments.
I suspect that most readers are familiar with the case, so I offer the barest sketch. Tennessee and roughly half of the other states in the country have, in very recent years, banned gender-affirming care for minors. A federal district judge enjoined the Tennessee ban as unconstitutional, but the US Court of Appeals for the Sixth Circuit reversed. Crucially, the Sixth Circuit held that the ban did not discriminate based on sex--even though the very same medications banned for gender-affirming care for transgender youths are permitted by the state for various other purposes in cisgender youths, and even though the only way to distinguish transgender from cisgender youths is by reference to sex assigned at birth. Nonetheless, finding no sex-based classification, the Sixth Circuit applied the permissive rational-basis test and upheld the ban.
There were other issues in the case in the courts below--including the plaintiff-parents' claims that the Tennessee law violates a right of parents (with approval from doctors and other medical professionals) to make medical decisions for (and with) their minor children. The Sixth Circuit rejected those claims too, but the Supreme Court granted review of only the equal protection claim pressed by the United States. Thus, the entire case might be mooted if the DOJ "confesses error" and seeks to dismiss the petition following the change in administration next month.
Accordingly, there is a chance that the case will go away before SCOTUS renders a decision on the merits. Even if the Court does decide the merits and rules for Tennessee, that will leave open the possibility of a parental rights or other substantive due process-based liberty argument for invalidating laws like Tennessee's. (For an excellent version of the latter that works within the history-and-tradition framework, see this recent article by Professor Lewis Grossman.) For the balance of this essay, however, I'll focus exclusively on the equal protection issue currently before the Supreme Court.
One way the Court could rule for Tennessee is by finding that discrimination based on transgender status is not a form of sex discrimination nor invidious on its own (i.e., that transgender status is not a suspect or semi-suspect classification). To find that transgender status discrimination is not sex discrimination, the Court would have to reject the logic of Bostock v. Clayton County, which held that, for purposes of Title VII, transgender status discrimination is sex discrimination. Notably, Justice Gorsuch, who authored the majority opinion in Bostock, was silent during the entire Skrmetti oral argument. And the one Justice who was most interested in distinguishing Bostock was Justice Alito, who dissented there. (Solicitor General Prelogar denied that the U.S. was relying on Bostock, but Justice Alito was correct that the underlying argument uses the same basic logic as Bostock.)
I do not expect a majority to endorse Justice Alito's suggestion that the statutory holding of Bostock has no application in constitutional equal protection cases. However, he offered another ground that could have wider appeal. He invoked the dubious logic of Geduldig v. Aiello, which held that discrimination based on pregnancy is not sex discrimination. Numerous scholars and others have criticized Geduldig as obtuse. Congress rejected its logic with respect to statutory antidiscrimination law in the Pregnancy Discrimination Act. Nonetheless, Geduldig remains on the books, and Justice Alito's opinion in the Dobbs case relied on it to summarily reject the contention that abortion restrictions amount to sex discrimination.
Tennessee S.G. Matthew Rice leaned heavily on the Geduldig logic. The state wasn't distinguishing between boys and girls or even between transgender and cisgender minors, he said; it was simply distinguishing between medical purposes. Just as a state might approve a narcotic drug for use during surgery or to treat cancer pain in terminal patients but not as a treatment for headaches, so the state can approve hormone blockers as a treatment for precocious puberty but not for transition care. The Geduldig logic suffuses that argument because it assumes that blocking a treatment for a condition that, by definition, affects only transgender youth, while allowing the same treatment for cisgender youth for conditions that may afflict them, is not in any way about transgender status.
Despite the fact that four additional Justices signed onto the Geduldig-reliant Alito majority opinion in Dobbs, the oral argument in Skrmetti provided little evidence of an appetite for relying on the Geduldig logic here. Rather, some of the conservatives--especially Chief Justice Roberts (who joined the majority in Bostock) and Justice Kavanaugh (who dissented there)-- seemed inclined to want to say that the Court should defer to the state legislature because the underlying issue involves medical judgment about which the Court lacks expertise. This is the argument that, in my view, won't write. Let me explain.
SCOTUS Justices (and other judges, but I'll focus on SCOTUS) use the phrase "the opinion won't write" to mean roughly this: They've read the briefs and heard oral argument; they've discussed the case at conference and have reached a disposition and agreed upon the basic rationale; however, when the Justice assigned the opinion sits down to write it, they discover that they can't make it work; the opinion won't write. Sometimes when an opinion won't right, the Justice switches their vote on the outcome of the case, but other times they might try to justify the same result using a different rationale.
When I say that the seemingly desired Skrmetti opinion won't write, I mean that it will be just about impossible to write a persuasive opinion saying courts should defer to state legislatures on matters of medical judgment, full stop. The Court can't get there without first rejecting the government's argument that heightened scrutiny applies to the Tennessee law because it deploys a sex-based classification.
As noted above, it's possible that the Court could rely on the dubious Geduldig logic to say rational basis scrutiny applies; if so, then sure, it's possible to imagine a medical rationale for treating the banned therapies as analogous to prescribing narcotics for a headache and thus constitutionally permissible. And traditional rational basis scrutiny requires only that a law's justification can be imagined. However, as I also noted, some of the Justices seem inclined to want to skip over the decision whether to apply heightened scrutiny and simply rule that the state gets deference.
The only logically sound way to skip over the level-of-scrutiny question would be for the Court to assume arguendo that heightened scrutiny applies but conclude that Tennessee wins anyway. Yet for Tennessee to win the case in that scenario, the Court would need to find--using the conventional version of intermediate scrutiny--that Tennessee's ban substantially advances an important government interest. Protecting minors from harmful impacts of a medical treatment regimen is surely an important government interest, but to say that Tennessee's ban substantially advances that interest requires some independent scrutiny of the underlying medical science.
To see why, suppose that a state banned some drug X as a treatment for obesity in girls and women but not in boys and men. It's possible that this could be justified on the ground that X carries a greater medical risk in girls and women than in boys and men. But if someone challenged the ban, the Court would not simply throw up its hands on the ground that it has no medical expertise. Heightened scrutiny means that the state needs to come forward with good evidence that X is risk-justified in males but not females.
Nor will it do to distinguish my hypothetical on the ground that my imagined law expressly draws a sex distinction. If the Court wants to avoid deciding whether the Tennessee ban discriminates based on sex, it needs to assume arguendo that it too uses a sex-based classification.
Meanwhile, there is nothing special about medicine. All sorts of invidiously discriminatory laws might be defended on grounds that involve technical knowledge of some sort--involving economics, technology, sociology, psychology, and more. The Justices lack expertise in all of these matters. And a rule that cabins deference to cases involving medical judgment would be arbitrary.
There is considerable irony here. Earlier this year, in the Loper Bright case, the Court abandoned Chevron deference to administrative agencies over the dissent of Justice Kagan (joined by Justices Sotomayor and Jackson), who objected that the Court lacks the necessary technical expertise to resolve the sorts of questions it was committing to de novo judicial determination. Although state legislatures have the ability to hold hearings to inform their judgment, as a general matter they are less expert than agencies, and their members are no more expert than the Justices. Yet taken together, Loper Bright and the drift of the Skrmetti oral argument suggest an upside-down regime of deference to state legislators even when infringing constitutional rights but not to expert administrative agencies on matters generally delegated to them by Congress.
Finally, in saying that the Skrmetti opinion that Chief Justice Roberts, Justice Kavanaugh, and perhaps other conservative Justices seem to want won't write, I'm not necessarily predicting that they won't write an opinion passing over the level-of-scrutiny question and deferring to legislative judgment. I am saying that such an opinion will be unpersuasive.