Kagan's Play in Skermetti: Find that the Tennessee Law Imposes a Valid "Quasi-Suspect" Classification on Transgender People under Cleburne

And Justice Kagan will try to persuade Justices Gorsuch and Barrett to concur in the judgment, creating a 4-3-2 split.

I've just finished listening to the 2.5 hour oral argument in Skrmetti. A majority of the Court seems prepared to uphold the Tennessee law. There may even be seven votes for that outcome. But as always, Justice Kagan is in the middle, trying to broker a compromise that preserves future challenges for transgender litigants.

I do not have the transcript yet, so this post will based on my best recollection. I'll post from the transcript later.

Solicitor General Prelogar argued that the Tennessee law imposes a sex-based classification. But Justice Kagan pushed her former law clerk whether the law imposed a different type of a classification--on the "status" of being transgender. I immediately thought of Cleburne and Romer, which both imposed some sort of quasi-suspect classification that was subject to Rational Basis "Plus Bite" scrutiny. Here is how Randy and I describe these precedents in 100 Cases:

Nevertheless, in two Equal Protection Clause cases the Supreme Court took a different approach. In City of Cleburne v. Cleburne Living Center, Inc. (1985) and Romer v. Evans (1996), the Court applied what is sometimes called heightened rational basis scrutiny, even though the classifications at issue were not suspect or quasi- suspect. In these atypical cases, the Court returned — at least temporarily — to the type of rationality review articulated in Carolene Products. . . .

In Cleburne and Romer — two Equal Protection Clause cases — the Court employed heightened rational basis scrutiny despite the absence of a suspect or quasi- suspect class. The Court would use a similar approach in Lawrence v. Texas (2003). This case overruled Bowers, and held that Texas's criminal prohibition on sodomy violated the Due Process Clause. Critically, the Court did not hold that the sodomy ban violated a "fundamental" right. Instead, the majority still reviewed the Texas law with heightened rational basis scrutiny. We

Both of those precedents have fallen by the wayside after Obergefell, but they were never overruled.  And for a time, Justice Kennedy really believed this was the way to resolve gay rights cases. Prelogar did not take the bait and suggest that transgender status should be a quasi-suspect class. I don't know if she didn't see it, or the government refused to take that position.

But you know who did pick up on Kagan's question? Justice Barrett. She asked the Solicitor General about a quasi-suspect classification under Cleburne. She asked about whether there was a history of de jure discrimination against transgender people. She asked about Arlington Heights. Barrett was 100% locked in on this issue. Justice Alito also picked up on this line of questioning as well.

Matt Rice the Tennessee Solicitor General forcefully pushed back against this argument. He said that the Court has effectively abandoned those cases. (Randy and I have debated whether to remove Cleburne and Romer from our casebook.) Moreover, Rice argued that deciding whether a classification is quasi-suspect was unprincipled. For example, trying to decide whether a particular group lacks political power is not subject to any meaningful judicial guardrails. This was the sort of jurisprudence that was prominent in the 1970s and 1980s, but not in the modern era. Schuette v. BAMN (2014) buried that approach. Moreover, Rice noted that any argument based on Arlington Heights, which Barrett asked about, was waived in this case. In any event, there is no argument made that there is the sort of invidious discrimination, or what Justice Kennedy would have called "animus."

Kagan's play is transparent. She will vote to uphold the Tennessee law, but say that rather than applying rational basis scrutiny, the Court should recognize transgender people as a quasi-suspect, and laws discriminating against transgender people are reviewed with rational basis "plus bite." Prior to Obergefell, this was the roadmap for gay and lesbian discrimination. Kagan will say this Tennessee law survives that deferential standard, as would bans on transgender athletes, but lower federal courts will then have cover to halt all other laws that avoid those third rails. You can see how she would pitch this to Justices Barrett and Kavanaugh. We know from Jodi Kantor's reporting that Justice Kagan tried to broker deals in the Trump immunity case, but the conservatives were not interested. Kagan is trying, once again, to broke a deal. Her ideal would be a 4-3-2 split, or even a 3-3-3 split. Tennessee prevails, but no majority opinion establishes the standard of review, giving a green light to lower courts to police transgender laws. And the liberals defensively deny cert on all trans cases for the rest of time.

Justice Barrett did ask about the quasi-suspect class, but seemed very skeptical of the Arlington Heights issue. What about Justice Gorsuch? He did not say a word. Not a peep. He skipped each of the seriatim round. Shortly after the election, I wrote that the Trump administration would closely scrutinize Gorsuch's questions to determine whether or not to try to take Skrmetti off the docket.

The case will be argued in December. I'm sure all eyes will be on Justice Gorsuch to see what he does. We remember the fallout to Gorsuch's questions in Bostock.

Gorsuch gave us nothing to go on. He said nothing. Will he go along with Justice Kagan's gambit? Let's see what the Wall Street Journal Editorial page says.

Even if Justice Gorsuch joins Kagan, I still think there are five votes to review the law the rational basis test. Justice Barrett may concur and say that the parental rights issue was not raised here, so it is not before the Court. Of course, after many relists, the Court (and Barrett) denied cert on the ACLU's petition, which squarely raised the substantive due process issue. But the Court has full control over its docket. Chief Justice Roberts was talking about deference in a fast-moving area with uncertainty. He was invoking his South Bay standard. He will be happy to stand by his precedent there. Then again, we know that Justice Gorsuch vigorously dissented in South Bay. Justice Sotomayor brought this up. She even pointed to Gorsuch and said "my colleague to the right." He said nothing. Gorsuch also did not joint the dissents from denial of cert in Tingley, Edmo, Grimm, or Kincaid. He has been silent on transgender cases since Bostock.