The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Court Upholds Tennessee Restriction on Youth Gender Medicine
Off to a conference today, so I can't write about it in detail but the Court's syllabus on p. 1-5 seems to summarize the opinion (U.S. v. Skrmetti) well.
Here's one particularly interesting passage I noticed, from Justice Thomas's concurrence:
The Court rightly rejects efforts by the United States and the private plaintiffs to accord outsized credit to claims about medical consensus and expertise. The United States asserted that "the medical community and the nation's leading hospitals overwhelmingly agree" with the Government's position that the treatments outlawed by SB1 can be medically necessary. Brief for United States 35; see also Brief for Respondents in Support of Petitioner 5 (asserting that "[e]very major medical association in the United States" supports this position). The implication of these arguments is that courts should defer to so-called expert consensus.
There are several problems with appealing and deferring to the authority of the expert class. First, so-called experts have no license to countermand the "wisdom, fairness, or logic of legislative choices." FCC v. Beach Communications, Inc., 508 U. S. 307, 313 (1993). Second, contrary to the representations of the United States and the private plaintiffs, there is no medical consensus on how best to treat gender dysphoria in children. Third, notwithstanding the alleged experts' view that young children can provide informed consent to irreversible sex-transition treatments, whether such consent is possible is a question of medical ethics that States must decide for themselves. Fourth, there are particularly good reasons to question the expert class here, as recent revelations suggest that leading voices in this area have relied on questionable evidence, and have allowed ideology to influence their medical guidance.
Taken together, this case serves as a useful reminder that the American people and their representatives are entitled to disagree with those who hold themselves out as experts, and that courts may not "sit as a super-legislature to weigh the wisdom of legislation." Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421, 423 (1952). By correctly concluding that SB1 warrants the "paradigm of judicial restraint," Beach Communications, 508 U. S., at 314, the Court reserves to the people of Tennessee the right to decide for themselves.
Obviously, there's vastly more to the case, and even to Justice Thomas's opinion, than that: For instance, expert opinions may be relevant when constitutional rules do require the Court to determine whether, say, a law is narrowly tailored to a compelling government interest; Justice Thomas argues elsewhere in the opinion, as does the majority that he joins, that this test doesn't apply here. Still, the paragraphs I quoted above strike me as offering a helpful perspective into Justice Thomas's thinking, and perhaps that of some others as well.
